IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0 


I.I 


IM 

2.2 

1^    12.0 


1.8 


1.25      1.4      1.6 

=     —     — = 

-^ 

6" 

► 

PhotosraDhic 

Sciences 

Corporation 


.# 


^^1? 


'i'J  Viti  I  MAin  3 !  RCC  i 

WEBSTER,  N.Y.  14580 
(716)  872-4503 


t^ifV 


.^' 


iV 


^ 


CIHM/ICMH 

Microfiche 

Series. 


CIHM/ICIVIH 
Collection  de 
microfiches. 


Can:,  'an  Institute  for  Historical  Microreproductions  /  Institut  canadien  de  microreproductions  historiques 


Technical  and  Bibliographic  Notea/Notea  techniques  et  bibliographiques 


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D 


Coloured  covers/ 
Couvertura  de  couleur 


□    Covers  damaged/ 
C 


couverture  endommag^e 

Covers  restored  and/or  laminated/ 
Couverture  restaur^  et/ou  pelliculde 

Cover  title  missing/ 

Le  titre  de  couverture  manque 

Coloured  maps/ 

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□    Coloured  ink  (i.e.  other  than  blue  o:  black)/ 
Encre  da  couleur  (i.e.  autre  que  bleue  ou  noire) 

I      I    Coloured  plates  and/or  illustrations/ 


D 


D 


n 


Planches  et/ou  illustrations  en  couleur 


Bound  with  other  material/ 
Relii  avec  d'autres  documents 

Tight  binding  may  cause  shadows  or  distortion 
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mais,  lorsque  cela  itait  possible,  ces  pages  n'ont 
pas  6ti  film^es. 

Additional  comments:/ 
Commentaires  suppl^mentaires; 


The< 
to  thi 


l.'Institut  a  microfilm^  le  meilleur  exemplaire 
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de  cet  exemplaire  qui  sont  psut-dtre  uniquss  du 
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modification  dans  la  m^thodn  normale  de  fiimage 
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I      I   Coloured  pages/ 


Pages  de  couleur 

Pages  damaged/ 
Pages  endommagies 

Pages  restored  and/oi 

Pages  restauries  et/ou  pellicuides 

Pages  discoloured,  stained  or  foxes 
Pages  dicolordas,  tachetdes  ou  piqudes 


I      I    Pages  damaged/ 

□    Pages  restored  and/or  laminated/ 
Pages 

r~T^  Pages  discoloured,  stained  or  foxed/ 


Thai 
possi 
of  th 
filmii 


Origi 
begii 
the  It 

SiOR, 

othei 
first 
sion, 
or  illi 


□Pages  detached/ 
Pages  ditachdes 

r~l/^Showthrough/ 
LJ^    Transparence 

I      I    Quality  of  print  varies/ 


D 


Quality  in^gaie  de  {'impression 

Includes  supplementar/  material/ 
Comprend  du  materiel  supplementaire 

Only  edition  available/ 
Seule  Edition  disponible 


The! 
shall 
TINU 
whic 

Mapi 
dlffei 
entw 
begii 
right 
requi 
met^ 


Pages  wholly  or  partially  obscured  by  errata 
slips,  tissues,  etc.,  have  been  refilmed  to 
ensure  the  bast  possible  image/ 
Les  pages  totalement  ou  partieilement 
obscurcies  par  un  feuillet  d'errata,  une  pelure, 
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obtenir  la  meilleure  image  possible. 


This  item  is  filmed  at  the  reduction  ratio  checked  below/ 
Ce  document  est  fUmi  au  taux  de  rMuction  indiquA  ci-dessous. 
10X  14X  18X  22X 


26X 


30X 


y 


i,£A 


ISA 


AJA 


24X 


28X 


32X 


The  copy  filmed  here  has  bean  reproduced  thanks 
to  the  generosity  of: 

Metropolitan  Toronto  Library 
Canadian  History  Department 


L'exemplaire  film6  fut  reproduit  grdce  d  la 
gin^rositd  de: 

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Canadian  History  Department 


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conformity  avec  les  conditions  du  contrat  de 
filmage. 


Original  copies  in  printed  paper  covers  are  filmed 
beginning  wit;"!  the  front  cover  and  ending  on 
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sion,  or  the  back  cover  when  appropriate.  All 
other  original  copies  are  filmed  beginning  on  the 
first  page  with  a  printed  or  illustrated  Impres- 
sion, and  ending  on  the  last  page  with  a  printed 
or  illustrated  impression. 


Les  exemplaires  originaux  dont  la  couverture  en 
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premidre  page  qui  comporte  une  empreinte 
d'impression  ou  d'illustration  et  en  terminant  par 
la  dernidre  page  qui  comporte  une  telle 
empreinte. 


The  last  recorded  frame  on  each  microfiche 
shall  contain  the  symbol  ^»>  (meaning  "CON- 
TINUED"), or  the  symbol  V  (meaning  "END"). 
whichever  applies. 


Un  des  symboles  suivants  apparaitra  sur  la 
dernidre  image  de  cheque  microfiche,  selon  la 
cas:  le  symbole  -—^  signifie  "A  SUIVRE".  le 
symbole  V  signifie  "FIN". 


Maps,  plates,  charts,  etc..  may  be  filmed  at 
different  reduction  ratios.  Those  too  large  to  be 
entirely  included  in  one  exposure  are  filmed 
beginning  in  the  upper  left  hand  corner,  left  to 
right  and  top  to  bottom,  as  many  frames  as 
required.  The  following  diagrams  illustrate  the 
method: 


Les  cartes,  planches,  tableaux,  etc.,  peuvent  dtre 
film6s  d  des  taux  de  reduction  dit?6rents. 
Lorsque  le  document  est  trop  grand  pour  dtre 
reproduit  en  un  seul  clichd.  il  est  Uim6  d  partir 
de  Tangle  sup6rieur  gauche,  de  gauche  d  droite. 
et  de  haut  en  bas,  en  prenant  ie  nombre 
d'images  n6cessaire.  Les  diagrammes  suivants 
illustrent  la  rrAthode. 


1  2  3 


1 

2 

3 

4 

5 

6 

v*m*nwmnmmmm^^mrt^at9 


iimKnfmm^^v^F^n^'.  ■  -.^j^-' 


^1  :  o<v  I 


BRIEF  STATEMENT 


OF 


OPINIONS, 


GIVEN    IN    THE 


BOARD  OF  COMMISSIONERS, 


wc,  c®rr.  csTr. 


"™tT 


■I 


■^I^" 


f  -    « 


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rjr'-.j<-H?wTimi'VtfTiJ^HWJjj»W|LMW 


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^-^^ —      — 


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BRIEF    STATEMENT 


07 


OPINIONS, 


GIVEN    IN     THB 


BOARD  OF  COMMISSIONERS, 

UNDER  THE   SIXTH  ARTICLE    OF  THE  TREATY  OF  AMITV, 
COMMERCE,  AND  NAVIGATION,  WITH  GREAT  BRITAIN  : 


WITH 


AN  APPENDIX, 


CONTAINING 


CERTAIN  ARTICLES  OF  THE  TREATIES  WITH  GREAT- 
RRITAINj— THE  COMMISSIONS  UNDER  THE  SAID  SIXTH 
ARTICLE  OF  THE  TREATY  OF  AMITY  j—AND 

REFERENCES  TO 

OPINIONS  DELIVERED  BY  JUDGES 

OF  THE  SUPREME  AND  CIRCUIT  COURTS  OF  THE    > 

UNITED    SrATES: 
BY  ONE  OF  THE  COMMISSIONERS 

UNDER  THE  SAID  SIXTH  ARTICLE. 


't 


PHILJDELPHIA:  '    • 

Printed  by  JAMES  HUMPHREYS,  No.  io6,  S.>uthSideof  Market-Strcet. 


1^00. 


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^aSSBSSB 


^3  O  '^  C^"A\ 


Ml  i:  1355 


-rt  ■  'gn'>'gT-^TyiKT'i.ariij«!Wii«iiiW'wn"wjpi,i  tJiiM)i^giiig'w:^gl^ii''i;''i'V.'ygrrTS"^^     — ■ 


t 


ADVERTISExMENT. 


SO  many  mdapprehenfions  prevail  refpcfli„„ 
he  proceedings  of  the  Comm.Uion  unde? 
riie   hxth  article  of  the  Treaty  of  Amity  wkh 
G^^eat  Britain,  that  the  following  biiefftatLent, 
(m  general  Without  coiTitnentary  or  defcicc)  of 
the  leading  points  which  came  under  dilbull  on 
and  the  opinions  which  were  aftualfy  aiven    cm' 
not  be  ufelefs.  or  improper.     It  ha^  See  ,'l  t  y 
drawn  ijp  by  one  of  the  Commiffioners  w1k,co,!- 
curred  in  thofe  opiiiions ,  and  ^vho,  for  reafons 
which  fome  Will  underiland,  takes  this  opportu- 
nity of  declaring,  that,  notwithrtandin^  the  in- 
ducements he  may  have  felt,  he  lias  never  pub- 
Whed,  or  been  pi-ivy  to  the  publication,  in  this 

wi(e,  oi  a  fingle  word  on  the  fubjeft;  the  detacli- 
cd  minutes  occafionally  printed  bv  aoent^    for 
the  information  of  paLi,  and  gineraiiy  wS 
the  permiffion,  or  knowledge  of  the  Boaid.  on- 
ly excepted With  theconfi-innfnero  of;  ""q. 

purpole;    the  concurrence  of  two  other  mem- 


f'' 


VI 


ADVERTISEMENT. 


k'3 


bers  of  the  ConimiiTion,  whole  honourable  ha- 
bits of  mind  he  has  had  fo    much  occafion  to 
know  and  to  rdpea;  the  aifui-ance  of  fublcqucnt 
rerieaion;     and   the  coincidence,    in    pruiciple 
and   interpretation,    between    the    opinions    ot 
the  Board,   or  a  majority   of  the  Commilhon- 
ers,  as  recorded  in  their  Journals,    and  now  a- 
bridged;    andthofe  which,  fi nee  the  treaty  ot 
amity,  have  been  folemnly  and  unanimoufly  de- 
livered, by  the  learned  and  refpedable  Judges  of 
the  United  States ;  he  can  feci  no  other  lolicitude, 
than  that  which  mull  arife  from  the  relpedl:  he 
entertains,  for  many  of  thofe  numerous  individu- 
als in  this  country,  who  are  laid  to  think  dif- 
ferently.  lo   that   refpea,    which,    without 

official  impropriety,  he  may  thus  take  occalion 
to  exprcls,  is  to  be  afcribed  the  publication  he 
now  offers. 


f 


Commissioners'  Ofiice, 

Puii-ADELraiA,    May  is*,    i^^o. 


CONTENTS. 


PIMUJ 


!!l««l!'lt!J"" 


mmmmmmm!^ 


■MIMWIglllUI  t^^_|_ 


rablc  \u- 
cafioii  to 
iblcqucnt 
principle 
nions  ot 
imiiTion- 

now  a- 
treaty  of 
oully  de- 
udges  of 
blicitudc, 
sfped:  he 
individu- 
hink  dif- 

without 
J  occulion 
cation  he 


ONTRNTS. 


CONTENTS. 


ORDER,  to  JJjew  cauje  why  the  claim  of  Ileniy 
Harfoi-d  Jljouid  no"t  be  dijmijfcd. 

Order,  on  the  claim  of  the  fiirviving  -partners  of 
Ofwald,  D  ^nniftown,  and  Co. 

General  order  of  the  Board,  flated. 

Rejolutions  on  the  '^v'^^  and  fccond  foints  in  the 
cafe  of  the  Right  Revd.  Charlt-s  Iiiglis, 

IndahiKiK  laivs  of  South  Carolina, 

Refolution  in  the  f^/'/^/Strachan  and  Mackenzie. 

Notes,  by  one  of  the  Commijfioners,  entered  on 
the  jom  nals  of  the  Board,         -  -  . 

Cafe  of  William  Cunningham  and  Co.— and  re- 
folutions  of  the  Board.         -  -         „ 

Cafe  of  Daniel  DuJany.  -  -  - 

General  order,  for  additional  memorials ;  and  di- 
re^ ions  for  the  ftatement  and  preparation  of 
Evidence.  -  «  , 

Object  ion  to  interefl  during  the  warj  and  Refolu- 
tion thereon  - 

General  Refolution  refpe5iing  evidence, 

Rejoluticn  on  the  third  point  in  the  cafe  of  the 
Right  Revd.  Charles  Inglis. 

Difr,itffion,  of  the  claim  of  Samuel  Brailsford. 

DifmiJJion,  of  the  claim  of  Jofeph  Anderfon. 

General  Refolution,  on  the  duties  of  the  Ccmmiffi- 
oners,  -  -  _  _ 

Order,  moved  in  the  cafe  of  Daniel  Duk.. 

Difmijfion  of  the  claim  of  Jofeph  Taylor. 

Cafe  of  Hanbury  and  others, 

Difmiffion  of  the  claim  of  Samuel  K( 


Page, 


{1  |-»  T7 


3 

ib. 

6 

7 
II 

12 

i6 


i8 


19 

ib. 

21 
ib, 
24 

26 

27 
34 


^ 


ViU 


CONIENTS. 


k 


Page. 
34 


Difmrjfton  of  the  feiition  of  Jofeph  Ciinlifie. 

Order  on  the  petition  of  Aquila  Giles,  and  Eli- 
za, his  wife.  -  -  - 

Difmijfion  of  the  /aid  petition. 

Difmijfton  of  the  petition  of  Robert  Watts. 

Rejoliition  in  the  cafe  of  LiJderdale. 

Rcfoltition  in  the  cafe  of  Clark,  adminiflrator  of 
Rv.flel.  .  -  -  - 

Refolution  in  the  cafe  of  Bowman  and  others 

Refolution  in  the  cafe  of  George  Anderfon. 

Refolution^  that  the  qiiefiion  in  the  cafe  of  Andrew 
Allen  wrtj  not  affected  by  the  diftintiion  there- 
in flated.  _  -  -  - 

*The  cafe  of  Andrew  Allen. 

Refolution  thereon,  _  -  - 

Order  propofcd  to  Jheiv  caufe,  why  the  claim  of 
RobvMT  W  illiams  foould  not  be  difmijjed. 

General  Opinions^  held  by  a  Majority  of  the  Board    ib. 

Final  ScccjfiQ.i   of  the  American   Commijfiuners       52 


36 

37 
38 

40 


43 
44 
45 

48 


f 


A 


APPENDIX. 


Artie Ui^  fourdi,  fifth,  and  Hxth.  of  the  Treaty  of 
Peace .  -  -  -  -  57 

Articles^  fixth,  feventh,  i^c.  &c.  of  the  Treaty 
of  Amity.  -  -  ~  -  ^8 

VrodaYdation  by  the  Prefident.  -  -       61 

Minutes  of  the  openings  and  communication  of 
their  refpetlive  Commiffions^  by  the  Britifh  and 
American  Commifjioners.       -  -  -      ih, 

Cormniffton  by  His  Britannic  Majefly,  -  62 

Commiffion  by  the  Prefident  of  the  United  States^ 
with  the  advice  and  conjcnt  of  the  Senate     -      ib. 

Minute  of  the  uppointrncni  of  a  Fifth  Commiffi- 
oner.  -  -  _  _  54 

Opinions  delivered  by  fudges,  of  the  United  Stales.     65 


!SBIIIIMi«a«iAW JI-iiili4Wrllk4a'J4!' '  ^i"?f?^ 


»M^Sii 


r 

'age. 

"Eli^ 

34 

35 

ib. 

or  of 

36 

s 

37 
3« 

- 

40 

drew 

here- 

43 

- 

44 

■ 

m  of 
card 

45 
43 

wrs 

52 

A 


\ 


SI 


- 

58 

- 

61 

n   of 

)  and 

•• 

- 

ih. 

- 

62 

'atesy 

e     - 

ih. 

m'lffi- 

64 

'atxs. 

65 

I 


I 


I 

4 

i 


i 


BRIEF    S  T  A  T  E  M  E  N  T, 


''h. 


^c.    ^c. 


Tni-:  Board  of  Commlfnoncrs  under  the  fixth 
article*  of  the  treaty  of  amity,  navigation,  and 
commerce  between  iiis  Britannic  Majeity  and  the 
United  State  ,  confiaing  of  tne  five  following  mem- 
hers,  namely,  Mr.  IMacdonald,  Mr.  Kich,  Mr.  Fitz- 
imons,  Mr.  Inncs,  and  Mr.  Guillemard,t  was  cor- 
Ibtuted  on  the  29th  day  of  May,  1797:  and  the  ^'e- 
ii^ra,  quefbons  r^ifed  before  them,  with  the  opiniSn;^ 
given,  may  be  thus  concM'dy  Hated. 


Commissioners'  Office, 
Philadelphia y   'January  i^^  1798. 

"    In  the  Cafe  of  Henry   Harford. 

CLAIM  for  certain  arrears  which  accrued  before 
the  peace,  of  quit  rents,  manor  rents,  and  alienation 

♦  See  the  article  at  length  in  the  appendix. 
^^1X'^  Commimone.  s  are  here  nan.ed  in  tlie  order  of  their  appoint- 
As  the  oommiffion  was  eflabli/lied   by  the  two  nations  for  the  our 
Jn.r/.  '■"'  °!  "^g^^'.^ting.  but  of  .bfolutely  and  finally  deciduJL 
n  atter  ,n  diipme    u  was  made  to  coniilt  ofVnch  a  number  of  .nembcrs 

of  option'  ""  '*"'""  '^'  ""^'  "''  ""  '""'^"'^^y^  ' "  ^'■^^■^  "^"  <^^ 

p3,' •fP'^'^;^^  ^.""^"^'^^."n^  by  his  Britannic  PJnjefty,  and  bv  the 
P.efident,  with  adv.ce  and  confent  of  the  Senate  of  the  h\.\J^LT. 
lb.  appointment  ot  the  htth  Comtnilhoncr  j  and  the  manner  of~tliit 
appouumcnt,  will  be  found  m  the  appendix,  N    u/"""'""''  ^^  *'«^' 

A 


i 


■  i>-it'!'*ii^miAiK^uaaaMM:. 


(        ^        ) 

fines;  and  alfo  of  tonnage  duties,  which  belonged 
to  the  claimant  as  proprietor  of  the  late  province  of 
Maryland. 

OBJECTION,  fuggefted  by  one  of  the  Britilh  Com- 
miffioners,  for  confideration,  before  ordering  ananlwer, 
viz.  "  tiiat  the  right,  eftate,  and  property  on  which  the 
«  claimant  founded  his  denaand  for  the  arrears  claiiii- 
^*  ed,  was  '>ie  of  thofe  *  eflates,  rights,  and  proper- 
'  ties'  thc  confifcation  whereof  is  recognized  by  the 
ffih  article  of  the  definitive  treaty  of  peace,  between 
his  Britannic  Majefty  and  the  United  States,  dated 
'  the  3d  day  of  September  1783:  that  duties  on  the 
«  tonnage  offliips,  and  on  tobacco  exported,  dated  as 
'  part  of  the  claimant's  late  revenues,  are  not  in  their 
<^  nature  to  be  confidered  as  debts  contraded,  within 
"  the  true  intent  and  meaning  of  the  treaticv."  and 
that  the  evidence  offered  would  befidt  s  '-e  infufficient 
to  fubftantiate  the  claim. Accordingly  it  was 

ORDERED,  that  the  claimant  fliould  have  leave, 
by  additional  memorial,  to  fhew  caufe,  why  his  claim 
fliould  not  be  difmiffed,  in  the  whole  or  in  part,  upon 
the  above  grounds.* 


<c  c 

cc 

cc 

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<c 

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I 


February  7,  179S. 

///  the  Cafe  of  George  Oswald    and 
others^    furviving    Pa7^t?ters   of  Os- 

WALD,    DeNNISTOWN,    &  Co. 

THE  Board  expreffed  a  general  opinion  refpecl- 
ing  the  defcription  of  parole  teitimony  tfiey  would  ex- 

*  An  adJitional  memorial,  (li-wing  cp.ufe,  was  rrcelveH  and  read 
on  the  jqth  Decemher,  1798,  and  the  uiual  o\\\t\-  made  for  an  anlwer 
on  the  part  or  thc  Vnitcd  Sitatts,  'Ihert  tht-  matter  relUd;  but  the 
(rule  is  here  'lated,  bccaule  an  opinion  was  ir.tin.a  ed  by  the  abuve  order. 


I 


\%i 


longed 
ince  of 


iCom- 
anfwer, 
lich  the 
;  claiiii- 
proper- 
1  bv  the 
between 
,  dated 
;  on  the 
bted  as 
in  their 
,  within 
r."  and 
Lifficient 
kvas 

T  leave, 
lis  claim 
:i  t,  upon 


\ 


(3) 

pe(5l,  by  the  following  order;   which  was  this  day 
pafled,   on  the  motion  of  one  of  the  Britifh  Com- 

miflioners. 


cc 

cc 
cc 
cc 
cc 

(C 

cc 
cc 
cc 
cc 
cc 
cc 


"  The  claim  of  George  Ofwald,  te.  &c.  figned 
by  the  general  agent,  and  prefented  by  him  this 
day,  having  been  re  ad, -^Ordered,  (with  refervation 
of  all  other  points  in  the  cafe)  that  the  general 
agent  be  required  to  let  forth  by  additional  memo- 
rial, whether  the  claimanra  can  offer  further  evi- 
dence, to  prove  the  infolvency  of  the  houfe  of 
Pleafant,  Cocke,  &  Co.  and  of  the  partners  there- 
of, as  Itated  in  the  memorial,  by  perfons  who  cart 
defcribe  thernfelves  as  having  been  in  a  fituation  to 
know  the  fatl,  and  able  to  Jtate  circimftances  in 
Jupport  of  their  /v//^/ refpefting  the  famej  or  other- 
wjie. 


hi 

\ 

I' 

t 


179S. 

D    and 
f  Os- 


refped-T 
rould  ex- 


\  and  ie;ul 
r  an  anl'wer 
td;  Hut  the 
above  Older, 


April  18,  1798. 

In  confequence  of  an  argument  which  had  been 
maintained  before  the  Board,  fuch  as  might  have 
warranted  conclufions,  perhaps  beyond  the  intention 
with  which  it  was  ufed,  an  order  was,  on  the  motion 
of  one  of  the  Britifh  Commifiloners,^  this  day  una- 
nimoudy  pafTed,  for  the  information  of  agents  and  all 
concerned ;  importing,  that  the  Commiffioners  were  not 
officially  at  liberty  to  confider,  in  what  manner  opinions 
whi<:h  they  had  inaturely  formed,  according  to  the  bcft 
of  their  judgments,  on  the  queftions  before  them, 
would  operate  upon,  or  effea:,  or  be  confidered  by 
the  parties :  or,  in  odier  words,  that  no  other  "  p- 


ir" 


r^«9a.i«fl|^»«^ 


(     4     ) 


"%"  than  that  of  juilice,  could  be  permitted  to 
influence  their  deliberations.* 


M 


ti 


K 


*  On  the  ful>jea  of  fuch  aigumenl-,  vvliich  were  afterwards  repcatf<f 
and  had  from  tlie  beginning  been  confid.red  by  fome  mcnibcrt;  c>f  the 
board    as,  at   lead,    very    unnectflhrv}    one   of    the  Conimiffioners, 
tor  ihtiprnpoicoi  preventing,  if  pofliblc,  evay  caiife  of  irntution  or 
ottcnce,  andbecauktheiiuclticn  had  bicii  put  to  the  Board,  in  writii 


by  the  aftonicy  ;.eneral,  whether  it  was  the  meaning;  of  the  above  of- 
dcr  "  that  it  belsii^ied  not  to  the  Board  to  conlider  what  thf  United 
*'  States   might    think  of  their  awards,"   wioie  a  note  «'  in  liis    pri- 
«  vate  capacity,  to    the  agent  f <  r    the  United    State^^'  and  (here  ex - 
prefied    h;MileU  as    toilows— "  It  is    aireiy  quite  fidHcient    to  ar-rue 
*'  that  the  cafe  is  not  within  the  mcanin^v  of   the  treaty,  r.nd  try  to  con- 
"  vince  ih.  Conimillioners  th:,t  it  is  not  j— but  what  avrils  ii  to  talk  of 
"  conjequoiccs,  \i  they  aie  jiot  convinced  ?  Can  men  of  honor  for  one 
*'  initant  lufter  the  confkiei  atlon  to  occupy  their  minds,  and  reafoii 
"■  taus  :     «  We  are  (Convinced  that  the  cai'e  h  within  the  treaty,  and  nc 
"  'carding  to  our  coniciences  and  our  oaths,  we  niuii:  decide  for  the 
*'  '  clainiauts;—biit  let  us  beware  j'— beware  of  what  ?  Of  the  opinion 
*'  wliich  may  be  entertained  by  others— by  Great  Britain  or  Amerie^i— of 
*'  that  decihon  which  a  Connniilioner  ;;//// give,  bccaule  on  ddiberation 
"  heisfatisfied  that  juilice  and  his  <iuty  require  it  ?  Certainly  not  j— .what 
"  would  arbitrators  between  individuals  I'.iy,  if  one  of  the  parties  de- 
''  iired  them  to  take  care  what  ihey  did;  i'or  if  ihey  decided    a<>-ainlt 
*'  what  he  thought  to  be  right,  he  would  hohi  tlicir  award   to  bc'^good 
"tor  nothing?   Surely  they  would  feel  tliemleives   infulied  ;  ancl  in- 
*'  fcnn  hini,  that  they  would  certainly  do  wha»  ihey  thought  to  be  ri^rht 
*«  withoi;t  tiie  (inalled  regard  to  bis  opinion  on  the  fubjecK  ^ 

"  Officially  xMr.   Macdonald  has  no  concern  with  the  queilion  i\\^. 
*' gelkd  in  the  aiifwer  in  Cunniitgham's  caic,  how  far  tlie   two  nati- 
"  ons  will  be  bound  by  the  awards  of  the  Bjr.rd  r— But  privately  he 
*'  thinks  itfit  '<>  declare,  that  in  his  opinion,  (and  he  has  leafon  to  be- 
*'  heve  that  every  ineinber  of  the  Board  agrees  with  him)  nothing  can 
«'  be  more  completely   enoneous  th:'n  tiie  argument  there  maintained, 
"  and  unfortunately  expofed  to  the  world  in  print.     Indeed  if  he  had 
"  ever  imagined  there  was  room  for  fuch  a  quellion,  he  certainly  would 
'*  not  have  conllntcd  to  accept  of  tli*.  lituation  of  a  Commdlioner ;   to 
"  be  employed  in  the  frivolous  occupation  of  giving  judgments,  which 
"  were  to  have  eiTea,  or  not,  accortiin-;  to  tlic  picaiure  of  either  of  the 
"  parties*— the  ,aw  he  holds  to  be  molt  clearly  lliis,  that  nnleis  the  de- 
«'  vialion  from  the  cafe,  iubmiited  (which  are  not  ipecially  itated  but 
"  generally  defined)  \'-,  t,uu,}j,jl  (i.  e.)  accoidinv;  to  tlie  meaning  given 
"  to  tnat  word  by  common  undei  Ifindlog,  as  vveli  as  by  I'attil  in  the 
«'  very  fentence  quoted  in  Cunninghanr^'caie,  llch  as  cannot  be  '  rti'- 
"  dcred  doubtful  by  thodilUnhon  of  the  parties,'  the  award  is  bindino- 
"  on  both  nation?,  wit!;out  ilie  fmailcit  icjard  to  what  cither  of  thein 
''.My  may  think  of  it.     It  is  true  that  a  void  award  mijht  hy  ffjjl. 
"  bdity  be  made  by  the  board,  fuch  for  -i.ltance  as  an  award  for  con- 
'•  hlcated  A^;;./,  or  en  debts  centriuMed  rftcr   the  peace,  and  the  like; 
"  which   would  be  io  mn.iif.fly  oui  of  ti:  ■  treaty,   that  there  could  be 
"  no  "  .iijjcntic.r  upon  the  lul;iea— bui  men  of  common  undcritand  r^ 
••  cannot  give  avoid  awauUindci  this  treaty,  without  cr.npi  mctiv.-,  • 
^«  i;.:cau!fthedtviauca  mult  he /^/^.,/-/r,  und  of  courA;  inienlionui.-- 


U 


".""^^ast.i-r^r.^a'aBes 


iwmmuwmm  i  '  i\p' ' ' ' « wuw.w" 


wfrnKSfmimfrK 


'•f^\WJ'J»m 


mittcd  to 


rds  iepcatf;<f, 
libera  vt'  tlie 
nnniflioncrs, 

iiritunon  or 

I)  in  wiitiii^ 

If  above  or- 

the  United 

ill  his  pii- 
md  I  here  tx- 
;iit  to  argue 
1  try  to  coii- 
it  ti)  talk  of 
»nor  for  one 

and  realoii 
aty,  and  r.c- 
cide  for  the 

tile  opinion 
America — of 
del  ibei  alien 
not  J — what 
;  parties  de- 
dcd    again ft 

to  be  good 
d  ;  and  in- 
:  to  ire  right 

.leilion  iiig- 
iwo  nati- 
irivaiely  he 
albn  to  be- 
lothiiig  can 
naintained, 
i  if"  he  had 
inly  would 
ilhoner ;  to 
;nts,  which 
't':er  of  the 
lels  the  de- 

itated  but 
nmg  given 
■■i/fi /  in  the 
»t  be  '  rtn  - 

is  bindins: 
er  of  them 
ht  hy  f^JJ'i- 
d  for  con- 
i  the  like  ; 
e  could  be 
Icritanding 
I  iiictivcs  j 
fculional/" 


C     5     ) 

\  May  21,  1798. 

i        In    the    Cafe    of    the    Right    Reverend 
Charles    Inglis    (Billiop   of  Nova 

j  Scotia.) 

I 

CLAIM  for  bond  debts,  the  juftice  of  which  did 
not  come  into  qiiellion.  ^ 

^OBJECTIONS    by  the  Agent  fbr  the   United 

J''''i'  7Y  f^  claimant  having  been  attainted  by 
an  aa  of  the  Rate  of  New- York!  palled  before  the 
peace  on  account  of  his  adherence  to  his  Britannic 
Majefty  ;  and  being  one  of  that  defcription  of  per- 
ions  who  are  Known  under  the  denomination  of  Ly- 
chjfs  ov  Refugees,  Jie  did  not  poflefs  a  charadler en- 
tithng  him  to  claii-n  before  t!ie  Board. 

^"^^condly  That  the  d.^brs  dne  to  him  havinjr  been 
^fnfijcated  by  the  faid  ad,  he  was  not  a  credito?;.^^ 
in  the  meaning  of  the  fourth  article  of  the  treaty  of 
pc^lce;  and  came  only  within  the  recommendatory 
provMions  of  the  fftb  article  ihereof.  ^ 

_    nirdly.Thn  he  was  guiltv  of  manifeft  negligence 
in  not  havmcT  proceeded  at  law  for  the  recovery  of 
his  debt,  and  was  bound  dill  to  go  through  a  courfe 


of  juoicial  proceedings  tor  that  purpofe  :   h 
remedy  before  the  Board  to  the  extent  onW 


aving 


mould 


tent  only  of  what 


lid  appear,  from  the  refult  of  fuch  proceedines 
to  be  irrecoverably  Joll.  ^  "^cccungs. 

On  full  argument,  the  Board,  confiding  of  all  the  five 
CommilTioners,  mimu.ioujly  decided  the  firft  and  fe 
^on<\  points  m  hivoiir  of  the  claimant;  and  referved 


m 


li%J((i!!W«K!<ll»«»»«n-!. 


H 


C    6     ) 

the  third,  for  further  confideratlon. — They  refolved  as 
follows."— 

"  RESOLVED— -That  the  claimant's  charafter  of 
Britiflifubjedt,  was  not  affeded  or  impaired  by  the  a61: 
of  attainder  and  confifcation,  paifed  by  the  ftate  of 
New- York  on  the  21ft  of  0£lober  1779,  attainting 
him,  with  the  Earl  of  Dunmore,  Governor  Tryon, 
Sir  Henry  Clinton,  and  many  other  Britilh  fubjeds, 
who  are  therein  dtfcribed,  not  as  fubjedlsof  the  ftate, 
but,  as  "  perfons  holding  or  claiming  property  within 
the  ftate;"  and  forfeiting  and  confifcating  their  whole 
eftates  real  and  perfonal  for  their  adherence  to  liis  Bri- 
tannic Majefty:  but  that  on  the  contrary,  the  faid 
a6l  of  attainder,  and  the  defcription  of  Loyalift  or  Re- 
fugee, applied  to  the  claimant  on  the  part  of  the  U- 
nited  States,  in  confequence  of  his  faid  adherence, 
are  conclufive  evidence,  that  he  ftill  maintained  his 
original  allegiance: — that  therefore,  he  is  entitled  to 
claim  vjforethis  Board  under  the  fourth  article  of  the 
definitive  treaty  of  peace,  and  the  fixth  article  of  the- 
treaty  of  amity,  between  his  faid  Majefty  and  the  Uni- 
ted States.* 

'*  RESOLVED — That  the  confifcation  of  the  debts 
in  queftion  before  the  peace  is  no  bar  to  the  claim : J 
and  that  the  board  have  fo  determined,  upon  the  same 
grounds  and  principles  of  interpretation,  refpeding 
confifcations  before  the  peace,  which  were  adopted 
and  declared  by  the  judges  of  the  United  States,  when 
(in  the  cafe  of  Hamiltcns  againji  Eatonl)  rhey  deci- 
ded in  their  circuit  court  for  North  Carolina  diftrid, 
that  debts  due  to  Britifti  fubjc6ls  v/ho  refided  in  the 

•  See  opinions  of  federal  judges,  iuice  the  treaty  of  amity,  appen- 
dix, N.  IV.  4. 

X  See  appendix,  N.   iV.  6. 

il  Tlie  board  weie  not  at  liiis  time  acquainted  with  the  opinions  ta 
the  lame  effeftj  deliveied  by  the  jiidj«;fs  of  the  iupieine  court  ol  tlic 
United  States,  in  thf  cafe  of  H^arrc  aciininiilr;.tor  of  Jof.'es  ag;iin(t  H}1- 
ton,    and  others  5   alio  lin  t  the  treaty  of  umiry. 


I 
I 


I 


■jjifHIUiHMigliiBjSSg 


If 


elblved  as 


larafter  of 
by  the  a6t 
le  ftate  of 
attainting 
)r  Tryon, 
I  fubje(5ls, 
^  the  ftate, 
rty  within 
leir  whole 
to  liis  Bri- 
^  the  laid 
lift  or  Re- 
of  the  U- 
idherence, 
rained  his 
entitled  to 
icie  of  the 
cle  of  the- 
i  the  Uni- 


f  the  debts 
e  claim: J 
;  the  same 
refpeding 
t  adopted 
ites,  when 
rhey  deci- 
la  diftri6l, 
ied  in  the 

mity,  apjn.ii- 


e  opnuons  to 
court  ol   tlic 


I 


I 


< 


(    7     ) 

province,  now  ftate  of  North  Carolina,  at  the  dare  of 
the  Declaration  of  Independence,  and  continued  diere 
torefide  till  the  20th  day  of  Odober  1777,  when  they 
^yere  obliged  by  law,  either  to  take  an  oath  of  abjura- 
tion and  allegiance  to  the  ftate,  or  to  depart;"  and 
which  debts  had  been  conHfcated  or  forfeited  to  the 
ftate  before  the  peace,  were  nevcrthelefs  due  and  ow- 
ing by  virtue  of  the  treaty. 

"  RESOLVED— -That  the  terms  of  thefaid  fourth 
article  of  the  definitive  treaty  of  peace,  are  in  them- 
felves  plain,  explicit  and  unambiguous:*  and  do  not 
require  or  admit  of  any  conftrudion  or  explanation 
from  the  fifth  article, J  to  which  the  fourtii  article  bears 
no  relation  whatever." 


July  13,   1798.IJ 

Li  the  Cafe  of  Strachan    and  Mac- 
kenzie, 

CLAIM  complaining  of  the  operation  of  the  fol- 
lowing a6ls  of  the  ftate  of  South  .Carolina^  common- 
ly called  the  Inftalment  laws,  viz. 

An  a<5t  pafled  on  the  26th  day  of  ^4;lrch  1784, 
whereby  it  was  enaded,  that  no  "  fuit  or  adion  (houid 
"  be  commenced  either  in  equity  or  at  lavv^,  for  tlie 

*  See  opinions  of  federal  judges,  app.  N.  IV.  3. 
\  Ibid. 

II  This  having  been  only  the  fcccnd  inilance  of  an  important  dccifl- 
on.  It  IS  proper _to^inention_,   that  little  of  that  m.n's  cf  b.ilniels  which 


av  lengrth  came  before  the  Board,  had  then  appealed.     It  did  not  come 

■  e  end  oi'  the  term  of  eighteen 


\\ 


-f.---        -" ..w.w._        ...^       .^......,,         Jlli.^,        llll.ll 

forward  to  any  great  extent,  till  towards  th 
ths.  nieicribed  by  th 


pioiitljs,  pieicril 


le  treaty  tor  receiving  coippla 


lilt 


MPWWW""* 


^■r] 


lt-l 

t 


Pi 


> 


f 


t( 


(C 


(     8     ) 

recovery  of  any  debt  or  bond,  note  or  account,  con- 
tratfled  by  a  citizen  of  any  of  the  LJni'ed  States  pre- 
vious to  the  26th  day  of  February  1782,  until  the 
"  Hrft  day  of  January  then  next  (1785)"  after  which, 
1:  Ihould  be  lawful  to  recover  only  the  intercft  whicii 
had  accrued  fincethe  full  day  of  January  1780,  *'  on 
*'  all  bonds,  notes,  or  other  contracts  bearing  inte- 
*'  reft." — ^iVnd  after  the  lit  day  of  January  1786,  only 
fucii  otiier  intereft  as  might  be  due,  and  one  fourth  part 
of  the  principal  funi:  and  after  the  ill  day  of  January 
1737,  one  other  fourth  part  of  the  principal  llim  v.'ith 
the  intereft:  and  after  the  iftdayof  January  1788, 
cm  ether  fourth  part  of  the  principal  fum  with  the 
intereft:  and  after  the  ift  day  of  January  17B9,  "  the 
*'  balance  which  might  tl^en  be  due  and  owing:"  but 
providing  that  if  any  debtor  fliould,  on  notice,  refufc 
to  give  to  his  creditor  fuch  fecurity  for  the  debt  as 
Ihould  be  approved  "  by  one  of  tlie  jud^rcs  of  the 
*'  court  of  common-pleas,  if  in  tr.e  Chiirleftovv'n  dif- 
*'  trie-:,  and  by  a  Commifiioncr  for  taking  fpecial  bail, 
"if  in  any  of  the  circuit  court  diftrids,"  the  creditor 
of  fuch  debtor  fliould  be  atlibc.ty  to  iue  and  pioceed 
to  execution  for  the  debt: — further,  that  no  property 
mortgaged  fmce  tiie  26th  day  of  February  1782, 
Hiould  be  feized,  provided  the  princij)al  and  intereft 
of  the  debt  were  paid  at  the  periods  before  mention- 


\X% 


And  by  another  ad  palled  on  the  28th  day  of  March 
1787,  it  ^^as  enadcd,  that  all  debts  contra^flcd  previ- 
ous to  the  t  ft  day  of  January  1 7 87,  ftiould  (with  cer- 
tain exceptions)  be  recovered  hy  iKftalnientSQvAy;  viz. 
on  the  I  ft  day  of  March  1788,  one  third  part  of  die 
principal  and  intereft,  and  on  the  ift  day  of  March 
1789,  one  moiety  oftht^principal  and  intereft  then  due; 
and  on  the  ift  day  of  March'1790,  the  remaining  ba- 
lance of  tatt  deo::  and  that  no  iudgment  fiiould^ind 
the  property  of  the  debtor  to  a  gre'iter  amount;    bur 


oiinr,  con- 
States  pre- 
,  until  the 
ter  whicli, 
reft  whicli 
780,  ''on 
ring  inte- 
[786,  only 
'^Gurth  part 
)f  January 
1  liim  v;ith 
jary  1788, 
1  with  the 
'89,  "the 
ing:"  but 
ice,  refnfc 
le  debt  as 
res  of  the 
flown  dif- 
)ecial  bail, 
le  creditor 
d  pioceed 
)  property 
iry  1782, 
id  intereft 
inention- 


of  March 


la  previ- 
(with  cer- 
onlyi  viz. 
art  of  the 
of  March 
then  diiej 
lining  ba- 
oiild  bind 
lint;    bur 


(     9     ) 

that  no  debtor  who  fhould  fail  to  give  fuch  feciirlty 
for  the  debt,  in  the  manner  therein  mentioned,  «  as 
"  any  one  or  more  of  the  judges  of  the  fupreme  court; 
"  any  one  or  more  of  the  juftices  of  the  peace  of  the 
"  diftri(5l,  not  exceeding  three;  any  one  or  more 
*'  of  the  juftices  of  the  county  courts,  not  exceeding 
"  three;  any  one  or  more  of  the  CommifTioners  of 
"  fpecial  bail,  not  exceeding  three,  refpedively;  at 
"  the  option  of  the  creditor,  fhould  deem  fufficient," 
lliould  have  any  benefit  under  the  ad. — And  the  pre- 
ceding a6t  was  thereby  repealed. 

And  by  a  fubfequent  ad,  pafled  on  the  4th  day  of 
November  1788,  the  debts  defcribed  in  the  aft  im- 
mediately preceding,  were  made  recoverable  only  by 
inftalments  of  one  fifth  part  of  the  principal  fum  and 
intereft,  on  the  '25th  day  of  March  yearly,  from  the 
25th  day  of  March  1789  to  the  25th  day  of  March 
I79?>  inclufive-,  and  the  balance  remaining  due  with 
the  intereft  thereon,  on  the  25thday  of  March  1793: 
-;-with  a  fimilar  provifion  entiding  the  creditor  to  fuch 
fecurity,  as  fhould  be  approved  in  the  manner  defcri- 
bed in  the  preceding  ad:  and  another  provifion,  that 
"  no  fherifF,  or  other  officer,  ihould  be  authorized  to 
*'  fell  any  real  or  perfonal  property  in  virtue  of  his 
"  office,  at  public  auftion,  for  Jpecie  only;  but  all 
*|  purchafers  at  fuch  fales,  Ihould  have  the  option  of 
"paying,  either  in  fpecie,  or  xht  paper  medium;  any 
law  to  the  contrary  notwithftanding." 

And  all  former  Inftalment  laws  were  thereby  re- 
pealed. 

The  claimants  founded  their  danand  on  a  feries  of 
accounts,  terminadng  at  the  end  of  the  year  1774, 
as  extraded  from  the  books  of  the  partncrfliip  in  Lon- 
don, and  proved  by  the  oath  of  the  bookeeper  and  one 
B 


<c 


; lS  ---;_>-' J-^rTf'^'^''^ y 


N 


i\  I 


■31: 


.i 


if 


I'i 


(      10      ) 

of  the  partners;  and  alfo  by  bonds  which  were  pro- 
duced and  proved  to  the  Board. 

There  was  little  difpute  refpefling  the  exiftence  of 
the  debt  claimed  j  as  will  appear  from  the  following 
palTage,  extraded  from  the  written  argument,  on  the 
part  of  the  United  States :     "  The  Agent  for  the 
"  United  States  cannot  but  admit  in  this  particular 
*'  cafe,  that  the  books  of  entry  being  in  Great  Bri- 
**  tain  where  the  credit  was  given ;  and  the  accounts 
"  prefented  to  the  CommifTioners  dating  the  parti- 
"  cular  items  and  dates,  being  proved  by  the  oath  of 
*'  the  bookeeper,  as  well  as  one  of  the  parties,  to  have 
"  been  extradled,  and  truly  copied  from  thofe  books; 
"  and  bonds  being  produced,  which  were  delivered, 
"  amounting  to  nearly  the  whole  claim  of  principal 
"  and  interefl,  there  is  good  reafon  to  believe,  that 
**  nearly  the  balance  mentioned  in  the  memorial,  of 
*'/;i6,946  2  8  fterling,  was  due  on  the  31ft  of  De- 
"  cember,  1774." 


But  it  was  contended,  that  the  lofs  charged,  did  not 
arife  from  the  operation  of  the  above  Inftalment  laws, 
as  lawful  impediments  to  the  recovery  of  the  debt; 
but  had  been  occafioned  either  wholly,  or  in  part, 
**  by  other  caufes"  (as  it  is  exprcifed  in  the  provifo 
contained  in  the  article)  "  which  would  equally  have 
"  operated  to  produce  fuch  lofs ;  or  by  the  manifeft 
"  delay  or  negligence,  or  wilful  omiflion  of  the  claim- 


C( 


ant. 


On  this  fubje(fl  the  Board  received  written  evidence 
and  examined  witnefles :  and,  after  mature  deliberati- 
on, the  following  refolution  was  this  day  pafled;  with 
the  concurrence  of  all  the  five  CommilTioners*. 


•  Colonel  Inncs  of  Virginia,  one  of  the  American  Commiflloner':, 
than  whom,  a  man  more  truly  honourable  never  exifted  ;  who  cnjoye-d 
the  Cfirdin!  fricndUiip  of  Geneia!  Wafhington ;  had  refignfd  xh^ 
Ctuation  of  Artorncy  Gtneial  of  the  ftate  to  which  he  belonged,   to 


!!Mti|J|!W*'JlliW!MaWPi»W 


-rr 


( 


II 


y 


li 


1  were  pro- 

cxiftence  of 
e  following 
ent,  on  the 
jnt  for  the 
i  particular 

Great  Bri- 
be accounts 
;  the  parti - 
the  oath  of 
ies,  to  have 
lofe  books; 

delivered, 
f  principal 
^lieve,  that 
emorial,  of 
jiftofDe- 


:;d,  did  not 
ment  laws, 
the  debt; 
r  in  parr, 
he  provifo 
ually  have 
le  manifeft 
the  claim- 


n  evidence 
deliberati- 
(Ted;  with 


)mmifnoner<, 

who  enjoyed 

refigned    xht 

belonged,    to 


*'  RESOLVED,  that  the  laws  of  South  Carolina, 
palTed  fubfequent  to  the  peace,  and  known  under 
the  denomination  of  the  Injlalment  Laws,  were 
**  lawful  impediments  to  the  recovery  of  debts  fecu- 
*'  red  by  the  treaty  of  peace;  and  in  this  cafe  opera- 
"  ted  as  fuch  within  the  meaning  of  thtftxth  article 
"  of  the  treaty  of  amity." 


<t 


n 


it 


A  difcufTion  afterwards  took  place  on  the  fubjedl 
of  the  lofs  charged ;  founded  on  averments  made  by 
the  Agent  of  the  United  States,  refpefting  certain 
fubfequent  tranfacflions,  and  other  accounts,  between 
the  private  parties,  or  their  agents. 


July  25,  1798. 

THE  fame  principle  which  forbad  all  official  con- 
cern, refpedting  the  reception  or  operation  of  an  opi- 

hold  a  place  in  the  coinmiflion  ;  and  was  diftinguifljed  as  much  for 
that  franknefs  of  mind  which  difdainedall  fineffc,  as  for  a  manly  elo- 
qoence  and  corre»^  judgement ;— at  this  time  laboured  under  the  indif- 
pofition  which,  in  the  courfe  of  a  few  weeks,  terminated  in  his  death  : 
but  his  rcafon  was  found  ;  and  he  had  well  confidered  the  prefent  qucf- 
tion.  He  declared  his  opinion,  by  a  letter  to  Mr.  Macdonald,  in  the 
following  terms.  "Dear  Sir — July  11,  1798— Among  the  diftreffes 
•'  incident  to  my  prefent  fituation,  there  is  no  one  whjch  I  feel  more  fin- 
"  cerely,  than  that  which  proceeds  from  an  apprehenfion,  that  my  non- 
**  attendance  at  our  Board,  may  occafion  confiderable  individual  incon- 
**  vcr.ience,  by  retarding decifions  on  the  Britifh  claims.  It  is  fuggeft- 
"  ed  to  me  by  Mr.  Grant,  that  the  cafe  of  Siracban  and  Mackenzie 
♦•  now  ftands  in  the  above  predicame  Should  that  be  the  cafe,  J  now 
**  take  the  liberty  to  requeft  that  it  may  not  continue  fo.  The  promi- 
*'  nent  features  of  that  cafe,  I  have  thought,  from  my  firft  view  of  it, 
"  molt  indifputably  brought  it  within  the  provifion  of  the  treaty;  and 
««  if  I  we.e  fortunate  enough  to  be  able  to  attend  the  Board,  fuch  would 
*'  be  rny  vote. — With  very  great  efteem  and  refpeft,  I  am,  Dear  Sir, 
*'  yours,  Sec.  James  Innes," 

**  Thomas  Macdonald,  Efquire.'" 

The  above  letter  was  filed  in  the  office,  with  the  following  note  up- 
on it.  bv  Mr.  MncdnnalH.— .«  it  Tnlv.  «^«9  TKIc  umc'^ Af^ivon^A  *« 

♦*  me  by  Colonel  Innes's  fon  laft  Wednefday  after  the  Board  had  rifen— 
**  litw  communicated  by  me  to  the  Board." 


!.*ij  • 


4 


(       12      ) 

moil  once  maturely  formed  and  conclufively  decla- 
red, fuggeftcd  the  wiOi,  that  all  poflibleaid  and  infor- 
Hiation  fliould  be  previoully  obtained;  and  every  op- 
portunity of  fair  and  friendly  difculFion  employed. 
With  this  vievv  it  was,  that  one  of  the  CommifTioners, 
who  had  made  ita  praftice  to  throw  out  for  confiderati- 
on,fuc!iobfervations  as  occurred  to  him,  at  the  moment, 
on  the  reading  of  every  paper  or  argument  before  the 
Board,  thought  of  colleding  and  expofing  his  obfer- 
vations  more  diilindly  to  the  view  of  all  the  mem- 
bers, as  well  as  of  himfelf,  by  putting  them  in  writing, 
and  entering  them  on  the  minutes,  as  matter  for  con- 
ference, when  no  other  bufinefs  (which  was  frequent- 
1>  the  cafe)  happened  to  be  ready  at  the  fittings  of  the 
Board.     The  continued  indifpofition  of  Mr.  Innes 
confirmed  the  fuggcftion ;  as  the  difclofurc  might  be 
convenient  for  Mr.  Fitzfimons,  who  had  on   many 
points  exprelTed  very  different  fcntiments  from  the  o- 
ther  members  of  the  Board;  while  it  could  not  poffi- 
bly  be  attended  with  any  other  inconvenience  than 
the  trouble  of  making  it, 

A  minute  was  accordingly  this  day  entered  on  the 
journals  of  the  Board,  of  which  the  introdudion, 
for  the  purpofe  of  /hewing  its  objed,  and  the  gene- 
ral expofition  of  the  fourth  article  of  the  treaty  of 
peace,  there  fubmitted  as  the  bafis  of  the  whole,  need 
only  be  flated. 

*'  Mr.  Macdonald  laid  the  following  notes  before 
"  the  Board,  as  the  fubftance  of  what  he  had  occafi- 
"  onally,  with  great  deference,  fubmitted  to  their  con- 
**  Tideration;  and  which  he  wiflied  to  have  entered  in 
^'-  the  minute  book,  as  fuch;  in  order  to  fubjed  them 
*'  to  that  clofe  examination  which  the  importance  of 
"  the  matter  demands,  and  his  defire  to  *--  explicit 
**  and  corred:^-  has  prompted  him  to  invitv 

'^  Under  the  fourth  article  of  the  treaty'  of  peace^ 
f*  the  points  of  enquiry  are  tliefe." 


iaffifaffli»!»B 


ely  decla- 
ancl  infor- 
every  op- 
employed, 
iniflloncrs, 
onfiderati- 
e  moment, 
before  the 
his  obfer- 
the  mem- 
n  writing, 
r  for  con- 
frequcnt- 
igs  of  the 
I'r.  Innes 
might  be 
on   many 
)m  the  o- 
not  pofTi- 
nee  than 


xl  on  the 
xludtion, 
he  gene- 
reaty  of 
ole,  need 


cs  before 
i  occafi- 
leir  con- 
itered  in. 
tdi  them 
tance  of 
explicit 


(     '3     ) 

"pHer   ^^•'" '''^ '•'^'^^^"■'■^^  contraaed  before  tbt 

'•  'Lt""f^'-  ^'t  ^\^  ''''°''^'  •""  ='"y  P"'  "f  the  full 

«  L  !, ,  °^  '''  ',"  "^^•■''"S  ""°"<^y.  '■«»'"•«  unpaid  to  the 
"frc^z/ar,  at  the  peace?" 


(C 


<c 

<( 

<i 

t< 

<( 

<( 

fc 

cc 


,  If  thefe  points  are  anfwered  in  the  affirmative 
nothing  can  take  the  cafe  out  of  the  treaty  of  teacL 
but  the  free,  voluntary,  and  uncontrouled  difchar^e 
of  the  creditor.     A  difcharge  by  adl  or  operation 
c   x'  "nf^PPorted  by  fuch  free  and  voluntary  aft 
of  the  creditor,  flill  Icitves  the  debt  within  the  de- 
Icription  o{  fairly  contra  tied,  and  mt  fairly  paid  x 
and  though  fuch  difcharge  by  mere  operation  of 
law,  would  be  good  againft  an  American  creditor. 
It  IS  of  no  avail  againfl  a  Britifh  creditor;  for  this 
plain  reafon,  that  tlie  right  of  the  former  is  govern- 
t^d  by  the  ^^;/,r^/  law  of  the  land,  but  that  of  the 
latter  byth^Jpectallaw  of  nation  ale  ompati  or  treaty:* 

''  The  article  contains  no  exception  either  as  to  the 

''^  nature,  or  to  thtamount  of  the  debts  thereby  fecured 

''  The  words  are  incapable  of  any  limited  interpre-i 

^   tation— '^//    debts'    of     whatever    nature— *  all 

debts  t  to  their  full  amount,  principal  and  intcrefl, 

according  to  the  original  contrad,  or  the  law  and 

ui:igt  which  then  prevailed.     This  feems  to  be  the 

neceflaryexpofition." 

,,  "  '^^J^^  recovery  of  the  full  value,  in  flerllng  mo- 

,,  "7.  of  all    fuch  debts,  fairly   ccntraBed  and  not 

Jairly  paid,  it  was  agreed,  and  folemnly  promifed 


t  Thefe  are  almoft  the  ve-y  words  employed  by  verv  learned  iudecs 
Pf  he  United  btates,  whole  opinions  <\.\\kcv^6  Jince  the  tremy  ofuvatx, 
wtll  be  found  in  the  appendix.  Incieeci,  the  Aitihrr  of  the  abof c  note' 
migiit  in  this  and  many  other  pallhcres,  be  accufed  of  p,:.<iiaiilm,  if 
thoe  opinions  had  been  then  publifhcd.  He  has  certainly  fJt  much 
£tat]ficat)on  in  the  coincidence. 


•iH 


Vi 


E!Enni5l; 


^.\ 


i 


f 


ll  ^ 


iiJ! 


K 


(     H     ) 

•*  by  the  two  nations,  rclpeiSlively,  that  BrltiOi  cre- 
"  ditors  fhould  *  meet  with  no  lawful  impediment' 
"  in  America,  and  American  creditors  fliould  meet 
"  with  no  lawful  impediment,  in  Great  Britniii." 

"  The  exprcfiion  *  lawful  impediments'  is  as  .om- 
"  prehenfive,  as  it  is  applicable  to  the  lubjed." 


C( 


Every  caiire  of  delay  is  an  impediment,** 


"  Every  caiife  of  delay  znCmg  pofitively,  out  of  the 
•*  operation  and  effedl  of  law  j  or  negative ly^  from  de- 
*'  fe^  o(  law,  is  a  lawful  impediment." 

"  The  fcope  of  the  article  obvioiifly  was,  that  the 
•«  lawt  or  the  defed  of  law,  fhould  not,  on  either  ftde^ 
**  (land  between  the  fair  creditor,  and  his  unwilling 
"  debtor :  that  all  laws  which  had  been  paflcd  againfl: 
•'  fuch  recovery,  (hould  be  repealed;  all  neceflliry 
"  means  in  law  rejiored;  all  bars,  by  paft  operation 
**  of  law,  having  a  prefent  cffetft,  removed,  chat  the 
«*  adminiftiation  of  law  in  the  courts  of  jufl-icf*  iluild 
"  afford  a  remedy  for  the  right,  according  to  the  ori- 
*' ginal  contrail  which  nothing,  as  already  ftated, 
**  but  the  free,  voluntary,  and  uncontrouled  adl  of 

"  the  party  himfelf,  fliould  be  held  to  difcharge 

**  In  ifiort,  that  creditors  who  nad  already  borne  their 
**  fhare  oi  fuffering,  under  the  common  calamity  of 
"  war,  with  all  its  train  of  incidental  evils,  in- 
"  eluding  the  lols  of  trade  and  bufinefs,  as  well  as  the 
"  want  of  their  money,  fliould  on  the  return  of  peace, 
"  find  their  juit  rights,  atleafl:,  entire;  in  the  fl:ate  in 
*'  which  they  left  them ;  with  the  fame  means  of  mak- 
•'  ing  theip  efieclual;  and  v/ithout  any  obilruiftion,  or 
"  caufe  of  delay,  fo  far  as  depended  on  the  law  J' 

The  notes  then  go  on  to  apply  the  above  expofition 
of  tlie  fourth  article  of  the  treaty  o^ peace,  under  the 
ftipularion'i  of  the  fixih  article  of  the  treaty  of  amity. 


itMixxmtmtimimaimmmmi^tiiumiwvuii.-^,'  v-.s*i»r:i*@EsaaBi 


■^i\%^r*5--w-^ 


poipiilii 


(     15     ) 

Aiigiiit  6,  1798, 

Li  the  Cafe  of  William  Cunningham 

and  Company. 

CLAIM  complaining  of  various  lawful  laiDf^dl- 
ments  m  Ptrgima,  by  which  the  recovery  of  the  d^bc4 
in  qucltion  had  been  prevented. 

OBJECTIONS  {inter  alia)  by  the  Agent  (ox  the 
knS  t-^'^"''    ^'   '    ^^''''^    ^^Sumenf   of   g.cat 

Firft.  That  there  were  "  no  legal  impediments  " 
1  p'elce"' "'  ''  ^"'"^  '^'^^'  "  ^"  4--,  fincc 

c9^f«';/^/y.  That  if  legal  impediments  had  exifted 
and  operated,  the  claimants  were  bound  to  prov^  bv 
evidence  of  the  folvency  of  the  debtors,  at  the  period 
of  fuch  operation  that  they  would  have  recovered 
payment,  if  there  had  been  no  fuch  legal  impedi- 
ments to  their  proceeding  for  that  purpole. 

rhirdly.  That  debts  defcribed  as  doubtful,  in  lifts 
made  up  in  the  year  1775,  (and  which  were  not  al- 
ledged  to  have  fince  become  good)  ought  not  10  be 
admitted,  as  the  fubjeft  of  a  daimWre  the  Board    " 

t  This  argument  win  announced  to  the  Board  is  >,*.;n«  ,1., 
bv  the  Attorney  General,  in  the  foilowir,7le«er  t    he  Aeet ^ ^^^ 
Umted  States,  annexed  to  it,  ai.d  therewith*  printed.    «  AtlolrC  ? 

n  ra  s    oihce,  ^  Apr.l.  ,798.     Sir,  The^Iaim  of  Wi  Ham  Cun 

be    tculed  by  the  Comm.flioners,  that  in  preparing  an  anfwer  to  it 
I  thought  u  beft  to  make  a  thorough  invefigati^n  of  thTfubleft 
•*  which  the  treaty  has  referred  tn  fK-.v.      t^u  ^     "  '  "^  ^"^  luoject 
«<  n\..i:..\  ..  ^u  .  A  '-•-  -  .        .  ■  *°  *  . '"•     ^*^^  3"fwer  you  will  be 


r\ 


if'i 


(     1(5     ) 

On  full  argument,  and  evidence,  before  the  Board, 
and  difcufTion,  in  it;  the  Board  decided  the  firft  and 
fecond  points  (Mr.  Fitzfimons  diflenting)  in  favour 
of  the  claimants  -,  by  refolving,  ihat  there  were  law- 
ful impediments  in  Virginia ;  to  fome  of  which  they 
fpecially  referred .  and  that  to  fuch  lawful  impedi- 
ments, all  lofles  incurred  through  lapfe  of  time,  the 
lofs  of  legal  evidence,  infolvency  of  debtors,  or  other- 
wife,  which  arofe  during  the  operation  of  the  fai(i 
lawful  impediments,  ^^rt  prima  facie,  to  be  afcribed  : 
— referving  it  to  the  United  States  to  (hew,  within 
the  provifion  of  the  treaty,  that  fuch  loffes  arofe  from 
other  caufes. 

The  third  point  was  decided,  unanimoufly,  in  favour 
of  the  United  States* 


Auguft  6,  1798. 

In  the  Cafe  of  Daniel  Dulany,. 

CLAIM  of  a  Britifli  fubjeft,  as  refiduary  legatee;^ 

under  the  will  of  a  teftatrix,  who  died  in  Maryland, 

in  December,   1775;  complaining  of  the  operation, 

fince  the  peace,  of  a  law  of  the  ftate  of  Maryland, 

paired  during  the  war,  whereby  the  debtor  was  au- 

thorifed  to  tender,  and  the  creditor  required  to  receive, 

paper  money,  in  full  fatisfaftion  of  his  debt;  which 

debt  was  declared  to  be  extinguifhed  in  whole,  if 

fuch  tender  was  refufed;  and  if  the  creditor  alfo  re- 

fufed  to  give  an  acquittance,  or  to  deliver  up  the  fe- 

curity,  he  was  liable  to  a  judgment  and  execution  for 

damages,  to  the  extent  of  the  debt,  with  cojls  :  ftating 


.^mus^^'^ 


:he  Board, 

s  firft  and 
in  favour 
were  law- 
/hich  they 
1  imped  i- 
time,  the 
or  other- 
^  the  fai(i 
afcribed : 
w,  within 
irofe  from 


in  favour 


1798. 

NY_. 

legatee;^ 
[aryland, 
peration, 
Maryland, 
was  au- 
I  receive^ 
\  which 
hole,  if 
alfo  re- 
I  the  fe- 


Jt 


1  /-\  r*     r^-vM 


:  dating 


that  by  force  of  this  permptory  and  penal  laW,  which 

obhged  to  receive  payment  of  debts  due  to  the  teftf 
tnxm  depreciated  paper  money,  which  debtfit  wa," 
admit  ed  were  thereby  extinguifhed,  to  the  extent  of 
the  value  m  fterling  rtoney.lf  the  depreciated  paper 
paid;  but  to  that  extent  only:  and  as  they  wte te 
ceffa,..|y  held,  to  be  wholly  exh«guified  at  W  fo  that 

t::J::^^^' '°  "~'">'  •^j"^'^-^'  proceedings  1:1' 

the  Board        ""°  ^°'^P«"'^"°"  ^'^^  the  lofs  gefore 

Stafef:^''^/^'''  ''^  ""  ^Sent  for  the  United 
„^I"  ■~'''f  '''«  /,w«'<"',  and  not  the  refiduary  le- 

fv  co„M  r'''' '7''-'°'"' '"^'^""'^''^^ '''«  ^'^ecutoron- 

o'  H,?     /^     '"''  ^'?  \^q"'«^"C«  for  the  debts  due 
to  the  teftatnx :  an<i   the  executor  (now  deceafed? 

'eTtfefr;\''r  ^""'S'^'^'  an  ^American  dtl^ 
.mo'n  .h  r7'  '"".'''"S  "P°n  Wm ;  and  througl,  him, 
upon  the  refiduary  legatee  :  that  befides,  the  eSecuto; 
had  given  acquittances,  or  delivered  up  the  fecurk  el 
purfuant  to  the  lav  :  and  that  therefore^he  Lbts  vvere 

CO.  fi  lering  the  executor  as  merely  an  agent  or  truftee 
intereft  '  "'^  P"'?"i  '"''^'"8  "^  i^"-«liate  beneficial 
tlie  a£t  of  the  executor,  m  obedience  to  a  peremptory 
&•  Z'lT  'f'  'f  "'■  ^'^-^  ^'■^''''°'>  b«  of  the  law  ?^ 
tided   rln       ^r'"'^  ""^'^  °<"  ''^"^  """'y  "*"  P^^ce  pio- 

no  lawfi    i       "■"'"'  °''  '^'''"^''  fi^'^'  fl^oulcl  meet  with 
no  lawful  impcLliments  to  the  recovery  of  the  M/  va 

^""/f«^fl"OS,ofalU.«./^.LbtstLCf"; 
cv.i.tra..cd  :  and  that  the  faid  law,  fo  operating  after  the 

whic™',l.e  tr.'o''  .M  °"'7, '°  ^''"'''."''^^■'S  ..o.!cc  of  an  occunenc, 
iLe  ii,n,(  o.  i|„s  ,,ublicat.oii,  it  is  bitter  tu  omit. 


il 


-I 


I. '-' 


(    IS    ) 

peace,  and  placing  the  creditor,  without  his  confent,  in 
thefituation,  that,  whether  he  received  the  tender,  and 
obeyed  the  law ;  or  refufed,  and  difobeyed ;  the  debt 
was  thereby  immediatel)  extinguifhedj  was  a  lawful 
impediment,  within  the  meaning  of  the  treaties  j — de- 
clared their  decided  opinion,  on  thofe  general  quef- 
tions,  in  favour  of  the  claimant. 

At  the  next  fitting  however,  Mr.  Fitzfimons,  who 
had  earneftly  oppofed  the  opinion  of  the  three  other 
members  in  favour  of  the  claim :  and  was  enabled 
fo  to  do,  as  he  ftated,  by  means  of  the  beft  informa- 
tion and  advice  j  entered  a  protefl  on  the  journals,  in 
which  he  aflferted,  that  the  above  opinion  of  the  three 
other  members,  was  not  only  unjuft,  but  "  manifeftly 
*'  unjuftj"  and  accordingly,  he  gave  no  realons  for  the 
charge. 


Auguft  28,  1798. 

Mr.  Innes  having  died  on  the  2d  of  this  month, 
was  fucceeded  by  Mr.  Sitgr eaves ;  whofe  commiflion 
dated  die  i  ith,  was  prefented  this  day^  when  he  took' 
the  oath  and  his  feat  at  the  Board. 


December  4,  1798, 

THE  BOARD  this  day,  on  the  motion  of  one  of 
the  Britifh  CommifTioners,  made  the  following  order. 

'^  The  Board  confidering  that  many  of  the  memo- 
'^  rials  and  claims  now  before  them,  are  avowedly  de- 


\9^ 


AWtSSWS^^.. 


^s^-*f^,S'iL>i  /s-l-:;?^"i^'.SiE  a?.f  ^ 


liiiHiinMiiRi 


wmmiim^'- 


t 


:onlent,  in 
:nder,  and 
;  the  debt 
J  a  lawful 
ies  J — de- 
:ral  quef- 


lons,  who 
iree  other 
5  enabled 

informa- 
Lirnals,  in 

the  three 
manifejily 
ms  for  the 


1798. 

is  month, 
>mnniflion 
n  he  took' 


i 


cc 
(t 
cc 
cc 

Cf 

cc 

cc 

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€C 

cc 
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CC 

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€. 

tc 
{( 
<( 
cc 
cc 
cc 
cc 
cc 


(  19  ) 

feftive   in  neceflary  ftatement  and  detail;   which 
defeat  the  claimants  pray  leave  to  fupply  by  ad- 
ditional memorials ;  and  that  the  greater  part  of 
ail  the  memorials  before  the  Board  contain  only  p-«?- 
neraj  averments,  without  ftating  the  nature  of  the 
evidence,  by  which  the  claimants  are  ready  refpec- 
tively  to  fubftantiate  the  fame,— Ordered,  that  in  all 
luch  cales,  the  leveral  claimants  prefent  additional 
memorials  without  delay  j  and  that,  in  particular 
without  derogating  from,  but  in  confirmation  of 
former  rules  and  orders  made  by  the  Board,   on 
the  lubjedt  of  evidence,  they  tberem  fet  forth  the 
pren/e  nature  of  the  evidence,  by  which  they  un- 
dertake to  fupport  their  feveral  averments ;  whe- 
ther the  fiid  evidence'  be  matter  of  record;    or 
confift  of  documents  in  wridngj  or  of  proof  by 
witnelTes;  refernncr  each  feveral  fpecies,  or  mode 
of  evidence,  by  diftind  applicadon  of  the  fame,  to 
each  of  trie  averments  fo  to  be  fubflantiated  :-~and 
that  tney  have  fuch  evidence  in  readinefs,  to  be  pro- 
duced within  a  limited  dme,  which  the  Board  will 
prdcribe,  if  they  fee  caufe  to  enter  upon  fuch  evi- 
dence, and  confider  the  fame  as,  in  its  nature,  com- 
petent and  adiTiiffible  in   fupport  of  fucli   aver- 
ments. 


Ttf' 


;  li 


1798, 

of  one  of 
ng  order. 

e  memo- 
tvedly  de- 


December  18,  1798. 

hi  ^he  Cafe  of  William  Cunningham 

and  Company. 

CJ.AIM  (before  referred  to)  complaining-,  inte^^ 
cuta,  of  the  practice  of  courts  and  juries,  in  dedud. 
ing  more  than  one  third  of  all  debts  bearing  intercft- 
by  adopting  a  ^^//.r^/n^/^,  of  denying  intereftineve.' 


ik^mnnBtm^ 


II 

♦ 


ssa 


( 


) 


ry  cafe,  without  regard  to  the  nature  or  terms  of  the 
contradl  during  the  period  of  the  warj  and  claiming 
compenfation  for  intereft  fo  deduced,  accordingly. 

for  the  United  States  :~-that  this  judicial  practice,  or 
genera  rule,  was  juftj  and  that  the  uniformity  of  it 
through  the  greater  part  of  all  the  ftates  in  the  Uni- 
on, proved  that  it  was  fo;..-^diat  therefore  no  com- 
penfation was  due. 

But  the  Board  on  full  argument  refolved  (Mr  Fitz- 
fimons  and  Mr.  Sitgreaves  dilTenting)  that  the  warf 
could  not  juflify  any  fuch  gefieral  rule  of  dedudion 
and  that  intereft  ought  to  be  awarded,  «  according  to 
tne  nature  and  import,  exprefs  or  implied,  of  the  fe-^ 
veral  contraas."J  And  to  prevent  miftakes  they  after- 
Wards  relolved,  -  that  in  deciding  againft  aii  objeai- 
^^  on  to  the  payment  of  intereft  during  the  war,  main« 
tained  geKer^Ify,  and  without  regard  to  the  nature 
and  import  of  the  contrad,  exprefs  or  implied,  they 
did  not  preclude   but  necelTarily  faved  all  objedions 
^^  to  the  payment  of  intereft,  which  may  arife  oiitof  the 
contra^,  or  other  fpecial  circumftances  of  the  cale  '* 


I 


THIS,  and  fome  other  bufinefs  beine  finifhcd,  the 
Poard  unanimouHy  laid  down  the  following  general 
rule,  on  the  fijbjed:  of  evidence,  ^ 

"  Refolved,  that  the  Board  will  receive  fuch  evi-. 
dence  only,  to  prove  the  debts  which  are  the  fub- 

t  ^ee  Judge  Paterfon's  opmion,  npp.   N.  IV.   2. 


fV. 


ms  of  the 
I  claiming 
dingly. 

ind  Agent 
ra^lice,  or 
nity  of  it, 
the  Uni- 
*  no  com- 


(     21     ) 

;;  jefts  of  claim  before  them,  as  would  have  been 
competent  and  admiffible  to  prove  the  fame,  imme- 
diately  previous  to  the  operation  of  lawful  mpedl 
ments,  m  the  courts  of  the  ftates  where  the  debto  s 

tTe  17^"^  ^,^wn    and  an  order  of  the  Board  for 
he  admimon  of  evidence  of  any   other  defcrip- 


Mv.  Fitz- 
the  war-}- 
?du6lioni 
ording  to 
of  the  fe-T 
ley  after- 
»  objec^ci-. 
r,  main* 
le  nature 
ied,  tlity 
bjedlions 
)utofthe 
be  calt\'* 


^cd,  the 
general 


ich  evi-« 
:he  fub- 


■^'. 


led 


paper, 


'>  give  an 
e  and  rta- 
bcing  to 
n  known, 
mider  the 
)  and  the 
-  panits. 


February  19,  lygg. 

In   the  Cafe   of   the   Right  Reverend 
Chajrles  Inglis. . 

CLAIM  (already  referred  to)  complaining  of  the 
aft  of  attainder  and  confifcation  of  the  ftate°of  New 
York,  as  a  lawful  impediment,  by  which  the  recovery 
of  certam  debts,  the  juftice  whereof  was  not  brou»hl 
into  queftion,  had  been  prevented.  ° 

OBJECTIONS  by  the  Agent  for  the  United 
States,  as  before  fet  forth  (page  5);  the  firft  and  fe- 
cond  of  which  were  decided  as  there  ftated;  and  the 
third  referved  for  further  confidcration. 

The  Board,  after  feveral  fpecial  arguments  and 
much  difctiffion,  proceeded  to  decide  IheqtLVo" 
when  the  majority  declared  it  to  be  clearly  their  odU 
nion,  from  the  evidence  before  f  he  Rn,H  fU„,.  ^, 
before  the  date  of  tlie  treaty  of  amity,  the  claimant 
could  not  have  recovered  in  the  ordinary  courfe  of  iuf- 
ticci  and  had  not  therefore  been  guilty  of  negligence  in 


..ik^^a^teiii^ 


.M. 


'*i^ 


\i 


:l;lh 


PI'; 


C       22      ) 

not  proceeding  for  that  purpofe: and  further,  that 

trom  the  terms  of  the  fixth  article,  and  the  inconfift- 
ency  of  the  contrary  pofition  (as  it  appeared  to  them) 
with  the  whole  meaning  and  objed  of  that  article, 
the  claimant  was  not  now  obUgGd  to  go  through  a 
coiirfe  of  judicial  proceedings,  for  the  purpolf  of 
trying  the  experiment,  whether  the  courts  would  de- 
cide differently  from  the  decifions,  which  had  been 
gn/en  preceding  the  treaty  of  amity:  "  by  which  a 
cc  rf  •   ^^o   "^^  ^"^  adequate'  compenfation  from  the 
United  States  veiled  in  thofe individuals,  whofe  cafes 
^^  were  then  within   the  defcription  it  contained  ^  a 
^^  right  not  contingent,  or  fluftuating  on  future  cir- 
cc  P^"""^!?^^^^'  but  perfea  and  entire;  to  be  carried 
,,  into  ettedt,  not  according  to  the  precarious  refult  of 
^   different  experimental  proceedings,  in  their  nature 
'  dilatory,  and  tending  from  the  cofts  of  litigarion 
^^  and  the  protraftion  of  difpute,  to  an  increafe  of  the 
^^  evil  J  but,  by  one  fimple  and  definitive  courfe  of  re- 
medy,  prefcribedjoindy  by  the  two  nations,  in  the 
Ipirit  of  friendihip  and  peace,  for  the  purpofe  of 
,,  Ipeedily  putting  an  end  to  the  only  remaining  caufe 
of  irritation  and  difcontent;  and  to  be  exclufivelv 
^.^  adminiflered  by  arbitrators,  whom  they  have  mu-. 
tually  chofen  and  invefted  with  ample  powers,  for 
that  wife  and  amicable  purpofe." 

To  prevent  avote  upon  this  refolution,  in  which  the 
majority  of  the  Board  concurred,  Mr.  rit^fimons  and 
Mr.  Sitgreaves  withdrew;  infilling  that,  notwithfland- 

Ihould  be  made  by  the  majority,  and  that  "  the  award 

«  ^i  .//S'/rh    r"'?'  «'/-^ty/^^r..of  them,n.ould, 
-iufllfpV^;  behnalandconclufive;  both  as  to  the 

"to  be  paid  to  die  creditor  or  claimant,"  they  wee 
entitkd  under  the  provifion,  "  that  one  of  the  Con  ! 

c^  fTinMLTiV    "^V      ./^  ^  ^.''^"^  ^^^^^'  Commifiloncr, 

.ihould  be  prefcnt,"  towidihold  their  prefence-  or  to 

withdraw  and  break  up  the  fitting,  ior\he  purpofe  of 


*S«Hst»i«Sll»T3S 


ther,  that 
inconfift- 
to  them) 
It  article, 
hroi]gh  a 
irpofe   of 
ould  de- 
had  been 
which  a 
from  the 
lofe  cafes 
ained;  a 
ture  cir- 
:  carried 
refiilt  of 
r  nature 
tigarion, 
fe  of  the 
fe  of  re- 
3,  in  the 
rpofe  of 
ng  caiife 
:liifively 
ve  mu- 
ers,  for 


lich  the 
ons  and 
hftand- 
ecifions 
'  award 
iTiould, 
'i  to  the 
he  film 
y  were 

•  Com- 
ffioncr, 

•  i  or  to 
pofc  of 


(     23     ) 

preventing  the  opinion  of  a  majority  from  bein?  car- 
ried into  elFedt.  ^ 

On  the  fame  principle,  they  again  feceded,  or  with- 
drew,  when  the  majority  concurred  in  propofine  an 
additional  refolution,  explanatory  of  the  above;  d^- 
clarinc ,  that  the  faid  former  refolution  «  did  not  af- 

«  A      ^^^  ^^^"'  ^^^^^^^  ^^^^^  ^^^  "o  fatisfaftory  evi- 

'  dence,  that  the  claimant  could  not  at  the  date  of  the 

^^  treaty  of  amity,  recover  a  full  and  adequate  com- 

penlation,  in  the  ordinary  courfe  of  judicial  pro- 


February  20,  1799. 

Luie  Cafe  of  Samuel  Brailsford. 

IN  this  cafe,  on  the  motion  of  one  of  the  Britilh 
Commimoners,  the  Board  unanimoufly  paffed  the 
lollowing  refolution. 

cc  'i  ^^^  }T^  ^'f  ^"S  confidered  the  memorial  and 
«Ml!T[  5'"""']  Brailsford,  who  dates,  'that  on 
the  6th  day  of  June,  in  -he  year  1794,  he  be- 
came a  citizen/  dijmtjfed  the  faid  claim/' 


February  22,  1799. 

n  uji^  Kjuja  oj  JOS.  Anderson. 

CLAIM,  complaining  of  an  ad  of  the  flate  of 
Vermont,  paffed  in  1779,  prohibiting  die  return  of 


r 


I|j 
I.  If 


m 


%smmmt: 


•^ 


(      24      ) 

all  pcrfons  who  had  joined  the  Britifli  army,  on  pam 
of  whipping;  and  if  they  remained  one  month  after, 
or  again  returned,  death;  as  a  lawful  impediment,  by 
which  he  was  prevented  from  recovering  his  debts. 

On  the  motion  of  one  of  the  Britifli  CommifTioners, 
it  was  unanimoufly  Ordered,  that  the  General  Agent 
for  claimants,  by  additional  memorial,  fhew  caufe, 
why  the  claim  ought  not  to  be  difmifiedj  on  the 
ground,  that  the  ad  of  alTembly,  ftated  in  the  memo- 
rial, was  no  lawful  impediment,  operating  after  the 
peace^  to  the  recovery  of  the  debts  claimed  :  and  that, 
no  other  lawful  impediment  was  therein  referred  to. 

And  on  the  5th  of  March,  an  additional  memorial 
having  been  accordingly  laid  before,  and  confidered 
by  the  Board,  the  claim  was  unanimoufly  dijmijfed. 


February  26,  1799. 

THE  American  Commiflloners  having,  in  conflr- 

cnce,  continued  their  fupport  of  the  pofition,  which 

m  the  cafe  of  higlis  they  had  diftindly  and  formally 

declared,  that,  when  they  could   not  in   any  other 

way  prevent  a  decifion,  by  the  majority,  againfl:  what 

ihey^  (the  American  CommifTioners)  conceived  to  be 

the  juft  rights  and  interefts  of  the  United  States,  they 

were  entitled,  and  even  bound  in  duty,  to  lecede,  or 

withdraw  from  the  Board  for  that  purpofej  the  three 

other  members,  who  held  a  very  different  opinion, 

thought  they  could  not  place  their  view  of  the  fub- 

jed  in  a  clearer  light,  than  that  which  was  prefented 

by  the  following  refolution.-=- 

«  RESOLVED,  that  it  is  expedient  to  declare, 
"  that  the  Commiflloners  appointed  by  his  Britannic 


Y  ^^/%rm.i!^K'ji''r^msA^6i*si^L*-:,^*v>Am>iim^ 


-W' 


(      25      ) 


on  pam 
th  after, 
nent,  by- 
debts. 

fTioners, 
1  Agent 
'  caufe, 
on  the 
memo- 
^ter  the 
id  that, 
rred  to. 

snaorial 
ifidered 


199. 

:on(Ir- 
which 
rmally 
other 
1:  what 
[  to  be 
s,  they 
de,  or 
:  three 
)inion, 
£  llib- 
fented 


?clare, 
tannic 


Majefty,  are  equally  charged   with  the  rights  of 
the  United  States  under  the  treaty  of  amity^  as 
with  thofc  of  Great  Britain,  or  of  Bridfh  fubjeds 
claiming  before  this  Board  j  and  that  the  Commifl 
fioners  appointed  by  the  United  States,  are  in  like 
manner,  equally  charged  with  the  rights  of  Great- 
Britain,  and  of  Britifli  fubjedVs  fo  claiming,  as  witb^ 
thofe  of  the  United  States:— that  there  is  no  dif-- 
tindtion  whatever  of  charader  or  duty  among  the 
members  of  the  Board  j  but  that  each  of  the  Bve 
members  thereof  is  an  arbitrator  upon  oath,  to  pro- 
ceed diligently,  and  decide  all  queftions,  whether 
of  interpretation  or  of  fad,  with  perfeft  impartiali- 
ty i  and  without  any  regard  to  his  original  appoint- 
ment, or  the  manner  in  which  the  opinion  he  is 
bound  in  confcience  to  give,  .may  affecfl  the  inte- 
rell  of  the  parties  concerned." 

This  declaration  was  propoicd  by  three  members 

4^4  ^°c?.^^'  ^"^  ^^  recorded  j  but  Mr.  Fitzfimons 
and  Mr.  Sitgreaves,  thinking  it  their  duty  to  prevent 
It  from  being  pafled  by  a  vote,  again  feceded,  or  with- 
drew. 


ec 
<c 

C( 
(C 
C( 

« 

<( 

<c 

cc 

cc 

cc 

cr 

cc 

cc 

cc 

cc 


a 


February  27,  1799. 

In  the  Cafe  of  Daniel  Dulany. 

An  order,  for  the  purpofe  of  bringing  this  cafe  to 
concluiion,  was  this  day  moved  as  follows. 

^  The  following  Order/o^l^lo^dr having,  on 
the  motion  of  Mr.  Macdonald,  been  read  yefter. 
oay,  viz.  an  Order  dated  thp  ^Ath  A>..r  ^c  t-L____ 
ber  laft.  m  thefe  words,  '  that  the  cl'aimant  fpeci- 
ally  fe  forth  within  , eight  days,  what  further 
evidence  he  offers  to  lay  before  the  Board  in  fup- 


'■11 


I  I 


■  t4i*'W 


rx 


(C 

(( 

€t 

(t 
t( 
<( 
<( 
(C 

<c 
cc 
<c 
cc 

C( 

cc 
cc 
cc 
cc 

(C 

cc 


cc 


cc 


cc 


(  26  ) 

*  port  of  his  claim:*  an  Order  dated  the  i8th  day 
of  the  faid  month  of  December,  in  thefe  words, 

*  that  the  Agent  for  the  United  States  have  leave  to 
'  fee,  and  make  obfervations,  on  fpecial  averments 

*  for  evidence*  then  laid  before  the  Board  by  the 
General  Agent;  and  an  Order  dated  the  8th  day  of 
January  laft,  in  thcfe  words,  *  on  the  application 

*  of  the  General  Agent  for  claimants,  to  appoint  a 
'  day  for  the  examination  of  William  Cooke,  Efq. 

*  having  been  read  j    Ordered,   that   the   General 

*  Agent  for  claimants  fpecially  fet  forth,  the  par- 

*  ticular  points  on  which  he  is  adduced  as  a  witnefs, 

*  and  that  the  further  confideration  of  the  applica- 

*  tion   be   poftponed  until   to-morrow :" And 

Mr.  Macdonald  having  then  mentioned,  that  he 
would  this  day  move  the  Board  to  proceed  in  the 
further  inveftigation  of  fad  in  this  cafe,  confident- 
ly with  the  above  orders,  by  authorizing  the  exa- 
mination of  Mr.  Cooke  at  Baltimore,  where  he  re- 
fides,  now  accordingly  moved  the  following  Order." 

"  ORDERED,  that  the  General  Agent  for  claim- 
ants prepare  and  lay  before  the  Board,  interrogato- 
ries in  this  cafe  to  be  fettled  by  the  Board,  for  the 
examination  of  the  faid  William  Cooke,  at  Balti- 


*'  more. 


>> 


if 


But  Mr.  Fitzfimons  and  Mr.  Sitgreaves,  thinking 
it  their  duty  to  prevent  all  inveftigation  in  this  cafe, 
again  feceded,  or  withdrew. 


0 

III 


bl 


March  26,  1799. 

In  the  Cafe  of  Joseph  Taylor. 

ON  the  motion  of  one  of  the  Britifh  Commiflion- 
ers,  the  claim  in  this  cafe  was  unanimoully  difmiffed,. 
as  follov)^s, 


-  »rfaiBi>iM»aiMiJiiia».'..»*'>«,'jtt»«i>j 


[8th  day 
2  words, 
I  leave  to 
/erments 
i  by  the 
:h  day  of 
plication 
ippoint  a 
ke,  Efq. 

General 

the  par- 
i  witnefs, 

applica- 
And 

that  he 
ed  in  the 
Dnliftent- 
tlie  exa- 
:re  he  re- 
5  Order." 

3r  claim- 
errogato- 
,  for  the 
at  Balti- 


thinking 
this  cafe. 


1799. 
DR. 

nmifiion- 
hfmilTed^ 


(     ^^7     ) 

"  THE  BOARD  having  refiimed  the  confidera- 
tion  of  the  claim  of  Jofeph  Taylor,  with  the  re- 
prefentation  and  certificate  laid  before  them  on  the 
part  of  the  United  States,  from  which  it  appears, 
that  the  claimant  became  a  citizen  in  the  year  1788, 
having  for  that  purpofe,  taken  the  oath  *  of  abjn- 

*  ration  of  the  King  of  Great  Britain,  and  the  oath 

*  of  allegiance  to  the  ftate  of  New  Jerfey;'  dif- 
mijfedtht  faid  claim." 


The  fame  day. 

In  the  Bafe  of  Hanbury,   and  others^ 
Executors  of  Mary  Hanbury. 

AFTER  confiderable  o^^ofition  and  argument, 
Mr.  Fitzfimons  and  Mr.  Sitgreaves  agreed  to  concur 
with  the  three  other  members  of  the  Board,  in  giving 
an  award  in  this  cafe  for  the  principal  lum  and  full 
intereft;  while  thofe  three  members,  on  their  part, 
agreed  to  abftain  from  pafTing  a  refolution  which  had 
been  prepared,  and  read  in  the  Board ;  ftating,  (on 
account  of  the  difference  of  opinion  on  all  the  points 
of  the  cafe  which  had  till  then  been  maintained)  the 
grounds  and  reafons  on  which  they  held  the  claim  to 
be  well  founded. 

The  principal  fum  in  queftion  was  only  ^^.370  fter- 
ling  fecurcd  by  bond  ;  but  the  cafe  involved  the  great- 

-^!     j^at  V   ^rl     ttli    LiiC    piiiKipiv3    VTillV,ll    nui-l  UCCU    CUiiLClLCCl 

before  the  Board.  And  the  unanimous  concurrence 
in  the  opinion,  that  the  claimants  were  entided  to  an 
award,  was  neceffarily  to  be  confidered,  as  a  declara- 


*-ff^- 


^3 


•\. 


m 


fiiii 


i 


m 


'f 


i;  I 


i'  i 


(       28       ) 

tion  by  unanimous  opinion,  that  fuch  of  the  objec- 
tions which  had  been  dated,  or  arofe  fronn  the  fafls  of" 
the  cafe,  as  would,  if  they  had  been  v/ell  founded, 
have  interpofed  an  infurmountable  bar  to  an  award 
within  the  meaning  of  the  treaty,  were  nol  well  found- 
ed i  and  that  ihe  cafe  was  within  the  meaning  of  the 
treaty. 

The  debt,  as  being  due  to  a  Britifh  fubjed,  had 
been  paid  by  the  debtor  into  the  (late  Treafury  of 
Maryland,  under  the  benefit  of  an  a6t  of  AfTembly 
pafled  in  the  year  1780  j  whereby  it  was  enaifled, 
"  that  all  debts,  promifes,  contracts,  covenants  and 
"  agreements,  thereafter  made,  by  writing  or  parole, 
"  for  gold  or  filver,  or  paper  money,  fliould  be  paid, 
"  difcharged,  or  executed,  agreeable  to  the  bond,  bcc 
"  or  the  parole  nromife  or  agreement,  and  the  intent 
"  and  meaning  of  the  parties  \  any  law  to  the  contrary 
'f  thereof^  notwithftanding."---"  and  it  was  alfo  thereby 
''  enabled,  that  the  bills  of  credit  ifTucd  by  Congrefs, 
**  or  emitted  by  any  ads  of  AfTembly  under  the  old 
^'  government,  or  refolves  of  Convention,  fliould  not, 
"  after  the  paffing  of  the  faid  a6l,  be  a  tender  or  pay- 
"  ment  in  law  or  equity,  for  any  debt,  &c.  created  or 
"  made  before  the  firft  day  of  September,  1776  ;  un- 
^*  lejs  where  the  creditor  had  not  become  a  Jubjecl 
'*  and  refident  of  this  orjome  one  of  the  United  States, 
^^  ftnce  the  faid firfi  day  of  September,  '^11  ^\  and  injttch 
"  cafe  the  debtor  of  fuch  creditor,  or  of  his  afTigncc 
*'  (who  had  not  become  a  fubje6V,  and  refident  of  this 
"  or  fqme  one  of  the  United  States,  and  who  had  not, 
*'  had  an  attorney  in  fa6t,  acknowledging  himfelf  as 
"  fuch,  for  the  purpole  of  receiving  debts,  always 
"  fince  that  time,  and  conftantly  refiding  within  the 
**  faid  ftate,  fince  the  ifl  day  of  September,  1776) 
"  might,  on  making  oath  or  affirmation,"  to  the  ef- 
fedt  therein  mentioned,  pay  to  either  of  the  Treafurers 
of  the  ftate,  to  the  amount  prefcribed  by  the  arfV,  ac- 
cording to  the  circumftances  required  to  be  fet  forth 
in  the  "oath  or  affirmation,  "  in  dijcharge  of  the  debt 


mm 


Mi 


(    ^-9    ) 


I    I 


c  objeC' 
;  fa,€ts  of" 
x)unded, 
n  award 
I  foiind- 
y  of  the 


ed,  had 
afury  of 
iflembly 
enaifled, 
mts  and 

parole, 
be  paid, 
nd,  Sec. 
be  intent 
contrary 
thereby 
ongrefs, 
the  old 
Lild  not, 
or  pay- 
eated  or 
76  ;  un- 

Jubjetl 
I  States, 
\  injueh 
alTignec 
c  of  this 
lad  not, 
nfelf  as 

always 
thin  the 

,  1776) 
'  the  ef- 
ea  hirers 
arfVj  ac- 
et  forth 
*he  debt 


'f  due  to  fitch  creditor,'*  in  the  bills  of  credit  therein 
defcribed  :  and  that  **  fiich  payment  flioiild  be  deem- 
•'  ed  in  law  a  payment  offuch  creditor,  or  his  afllgnce; 
**  and  the  Treafurers'  receipt  jhou/d  be  good  evidence  in 
*'  the  courts  of  law  and  equity,  of  the  payment  of 
<'  fuch  debt  " 

The  debt  in  qiieftion  was  not  within  any  of  the  de- 
fcriptions  to  be  faved  by  this  a(5l.  Having  been  con- 
tradted  before  the  pafllng  of  the  ad,  it  was  by  the 
converfe  of  the  firft  claiife,  not  to  be  "  difcharged  ac- 
"  cording  to  the  bond,  promife  or  agreement,  or 
"  the  intent  and  meaning  of  the  parties-;'  And  being 
due  to  perfons  who  had  not  become  "  fubjeds,  or 
**  refidents,  of  any  of  the  United  States,  and  who 
"  could  not"  therefore,  derive  even  a  remote  benefit 
from  a  payment  of  their  money  into  the  Hate  treafu- 
ry,  it  was  made  liable  to  be  difcharged  by  flich  pay- 
ment. 

But  the  creditor,  Mary  Hanbury,  a  Britifh  fubjedl, 
relying  on  the  fourth  article  of  the  treaty  of  peace, 
brought  her  adion  in  Augull,  1786,  notwithftanding 
the  above  payment  and  legal  extindtion,  againft  the 
debtor  Stephen  Welt,  in  the  general  court  of  Mary- 
land ;  where  judgment  was  given,  according  to  a 
judicial  agreement,  by  memorandum  on  the  record, 
in  the  following  terms. — "  Judgment  was  rendered  in 
"  this  caufe  on  the  14th  day  of  November,  1787,  for 
**  the  value  of  the  bond,  in  current  money  and  colts  of 
"  fuit,  fubjed,  neverthelefs,  to  the  following  terms, 
'*  viz.  The  plaintiff  agrees  to  releafethis  judgment,  in 
"  cafe  the  courts  of  law  of  this  Jiate  Hiall  finally  de- 
'*  termine,  that  payments  into  the  Treafury,  agreea- 
'*  bly  to  the  adt  of  Odober,  1780,  c.  5,  entitled, 
"  An  adt  for  calling  out  of  circulation  the  bills  of 
"  credit,  &c.  is  good  in  law — The  Plaintiff  agrees  to 
f*  releafe  the  interefi  due  on  the  bond  during  the  war, 
"  between  the  4th  day  of  July,  1776,  and  the 
*'  ^-^y  of  1783,  the  date  of  the  definitive 

**  treaty,  in  cafe  the  courts  of  law  of  this  ftnre  fliall 


■-S 


li    f 


m 


iifii  I 


cc 


cc 


<c 


(     30     ) 

finally  determine,  that  intereft  on  bonds  to  Brltlfh 
fubjecls  during  the  war,  or  any  pare  of  the  faid  time, 
cannot  be  recovered  by  them." 


The  general  court  of  the  (late  decided  in  favour 
of  the  Britijh  creditor,  on  the  above  qiieftion  of  pay- 
ments into  the  (late  treafury,  with  dedu6i:ion  of  inte- 
reft during  the  warj  but  the  high  court  of  appeals  of 
the  ftate,  decided  the  queftion  uniformly  againft  the 
Britifli  creditor. 

The  above  queftion,  on  payments  into  the  ftate 
treafury,  had  in  particular  been  fo  decided  againft  the 
Britifli  creditor,  by  the  faid  high  court  of  appeals  of 
the  ftate,  on  the  9th  day  of  June,  1795,  in  the  cafe 
of  Hay  wood  againft  Clark  adminift,  itor  of  Ruffel-y 
notwithftanding  the  fourth  article  of  the  treaty  of 
peace,  and  a  fpecial  ad  of  afiembly  of  the  ftate,  da- 
ted the  14th  day  of  May,  1787,  in  the  following 
ftrong  terms:  "  Be  it  enabled,  &c.  &c.  and  it  is  de- 
"  clared,  that  the  treaty  of  peace,  made  between  the 
"  United  States  of  America  and  his  Britannic  Ma- 
"  jefty,  is  thejupreme  law  within  ihefiate^  and  ftiall 
*'  befo  confidered,  and  adjudged,  in  all  courts  of  law 
"  and  equity;  and  all  caules  and  queftions,  cogniza- 
"  ble  by  the  faid  courts,  refpe6lively,  ought,  and 
'■^  fid  all  be,  determined  according  to  the  faid  treaty, 
"  and  the  tenor,  true  intent,  and  meaning  thereof:" 
— and  alfo,  notwithftanding  the  eftablifliment  of  the 
federal  conftitution,  which  was  adopted  by  the  ftate 
of  Maryland,  on  the  28th  day  of  April,  1788;  the 
fixth  article  of  which  contains  in  terms  not  ieis  abfo- 
lute,  the  following  declaration,  vizj  "  This  conftitu- 
tion, and  the  laws  of  the  United  States  which  fliall 
be  made  in  purfuance  thereof;  and  ail  treaties  made, 
or  which  fliall  be  made,  under  the  authority  of  the 
United  States,  jhall  be  thejupreme  law  of  the  land\ 
and  the  judges  ///  every  ftate,  fliall  be  bound  there- 


<( 


(i. 


i( 


li. 


(C 


cc 


V  i    any    CiiiOg  m    tilt    cOiiitiniLivyii,    or    iawo  w 


')» 


'^ftati'y  to  the  contrary^  notwithftanding." 


//  ii/ij 


f  I 


■iiilili 


■'fXt-„-,y^' 


to  Brltlfh 
faid  time, 


in  favour 
n  of  pay- 
1  of  inte- 
ippeals  of 
'ainft  the 


the  ftate 
^ainft  the 
ppeals  of 
1  the  cafe 
f  Rujel; 
treaty  of 
late,  da- 
bllowing 
i  it  is  de- 
wecn  the 
inic  Ma- 
and  Hiall 
ts  of  la'-iV 
cogniza- 
ght,  and 
d  treaty, 
:hereof:" 
It  of  the 
the  ftate 
'88;  the 
eis  abfo- 
conditii- 
iich  fliall 
es  made, 
ty  of  the 
'he  land', 
id  there- 
's of  any 


(     31     ) 

And  the  precife  fame  qiieftion,  on  payments  into 
the  loan  office  of  Virginia,  had,  in  the  year  1793, 
been  determined  againft  the  Britifh  creditor,  in  the 
cafe  of  llylton  and  others  againil  Jones-,  not  by  a 
ftate  court,  but  by  federal  judges  in  a  federal  court, 
under  the  new  conilitutioni  namely,  the  Circuit  court  J 
of  the  United  States  i—alfo,  notwithftanding  the 
fourth  article  of  the  treaty  of  peace,  and  the  fixth 
article  of  the  federal  conftitution,  before  recited. 

Nor  was  it  till  February  1796,  after  the  conclufi- 
on  of  the  treaty  of  amity,  that  the  law  was  declared 
to  be  the  reverfe  of  what  it  had,  by  federal  as  well  as 
ftate  judges,  been  declared  to  be,  before  that  treaty; 
by  the  reverfal  in  the  fupreme  court  of  the  United 
States,  of  the  decifion  which  had  been  given  by  the 
circuit  court,  in  the  above  mentioned  cafe,  of  Hyl- 
ton  and  others  againft  Jones  :  in  conlequence  of  which 
reverfal  in  the  fupreme  court,*  the  decifion  of  the 
high  court  of  appeals  of  the  ftate  of  Maryland,  in 
the  cale  of  Harwood  againft  Clark,  was  alfo  there  re- 
verfed. 

Such  had  been  thecourfe,  and  was  the  ftate  of  the 
law,  when  the  claim  in  this  cafe  was  laid  before  the 
Board.  It  was  the  firft  cafe  which  ftood  ripe  for  de- 
termination in  the  Board,  on  the  queftion  arifing 
from  fuch  payments  of  Britifli  debts  into  ftate  trea- 
furies;  and  it  difclofed  the  following  points  of  im- 
portance.— 

The  impediment  complained  of  was  a  plea;  put 
in  after  the  peace,  on  a  legiflative  ad,  which  at  the 
time  when  the  claim  was  prefented,  under  the  treaty 
of  amity,  was  fettled  by  a  decifion  in  the  laft  refort, 

X  The  Circuit  Court  of  the  United  States  is  not  a  Court  of  Nifi 
Prius,  hut  a  court  of  high  original,  as  well  as  appellate  jurifdidion  j 
and  next  in  rank,  to  the  Supreme  Coiut  of  the  Union. 

*  The  cafe  of  the  Britifh  creditors,  plaintiffs  in  error,  was  argued 
by  £,  Ttlghman  ;  and  that  of  the  defendants  by  MarJhaUoi  VirgTnia, 
3  Dallas's  Reports  199. 


J 


.. 


K 


•Jiii  liilMiiii'iiinr'V"' 


'Ml 


l->  "i 


iiii 


■'(  r-  ) 

to  Kavc  been  virtually  repealed  by  the  treaty  of  peace ; 
the  contrary  having  been  held  to  be  the  law,  at  the 
date  of  the  treaty  of  amity. 

The  impediment  operated  by  means  of  the  aSt  of 
the  creditor  who  releafed  the  judgment  -y  and  not  by 
operation  of  law,  without  the  intervention  of  any  a(i 
of  the  creditor;  fuch  a61:  however,  being  a  reasona- 
ble zSii  to  which  the  uncertain  ftate  of  the  law,  for 
want  of  a  fpecial  repeal,  gave  rife. 

Th-^  cafe  was  capable,  (as  Mr.  Sitgreaves,  who 
was  particularly  converfant  in  the  judicial  proceedings 
of  the  courts,  maintained)  of  being  put  in  a  train, 
notwithftariding  the  judgment  and  releafe  thereof  by 
the  creditor,  fuch  as  would  ftill  enable  the  claimants 
to  avail  themfelves  of  the  decifion,  which,  fince  the 
treaty  of  amity,  had  on  the  fame  queftion,  been  given 
by  the  fupreme  court  of  the  United  "tates,  in  favour 
of  Britifh  creditors,  by  means  of  judicial  proceedings, 
which  might  now  be  inftituted  for  that  purpofe. 

Further,  it  prefented  the  cafe  of  the  inferior  court 
(the  general  court  of  Maryland)  deciding  in  favour 
of  the  Britifh  creditor,  on  the  treaty  of  peace;  and 
t\\t/uperior  court  (the  high  court  of  appeals)  de- 
ciding againft  the  Britifh  creditor,  on  the  fame  quefli- 
on. 

And  laflly,  it  exhibited  a5fual  decifions  againfl  the 
acknowledged  import,  as  now  fettled,  of  the  fourth 
article  of  the  treaty  of  peace,  both  by  2i  federal  and  a 
high  ftate  court,  leveral  years  after  the  adoption  of 
the  new  conftitutiony  and  the  ejlablijhment  of  the  fede- 
ral judiciary  ;  contrafled  with  the  theory,  that,  every 
breach  or  difregard  of  the  fourth  article  of  the  treaty 
of  peace,  as  now  fettled,  became  impoffible  as  Joon 
as  the  new  conftitution  and  federal  judiciary  was  ef- 
tabiifhcd  -,  becaule  by  that  new  conilitution,  treaties 


of  peace ; 
LW,  at  the 


the  aSt  of 
md  not  by 
of  any  adb 
a  reafona- 
e  law,  for 


avesy  who! 
roceedings 
in  a  train, 
:hereof  by 

claimants 
,  fince  the 
)een  given 

in  favour 
Dceedings, 
Dofe. 


nor  court 
in  favour 
eace;  and 
peals)  de- 
me  quefti- 


igainft  the 
the  fourth 
^eral  and  a 
doption  of 
fthefede- 
hat,  every 
the  treatv 
)le  as  Joon 
ry  was  ef- 
n,  treaties 


(    33    ) 

were  declared  to  be  the  lav/  of  the  land  ;  and  the  fe« 
deral  judiciary  were  bound  to  adhere  to  the  federal 
conflitution. 

The  Board  having  unanimoufly  agreed,  as  already 
dated,  that  an  award  fhould  be  given  in  favour  of 
the  claimants,  and  of  courfe  that  the  cafe  was  within 
the  defcription  of  the  treaty,  an  order  was  made  on 
the  General  Agent  for  claimants,  to  make  up  an  ac- 
count of  the  debt ;  and  on  tht;  Agent  for  the  United 
States,  to  prepare  the  draft  of  fuch  an  ajfignment  of 
the  debt,  as  he  would  prooofe  to  have  executed  in 
their  favour. 

The  Attorney  General  having,  however,  thought  it 
his  duty  to  inftrud  the  Agent  for  the  United  States  not 
to  comply  with  the  order ;  infilling,  that  he  was  not 
hound  to  make  fuch  drafts ;  the  Board,  who  had  made 
that  arrangement  on  the  principle  that  the  Agent  of  the 
party,  for  whofe  benefit  a  deed  was  to  be  executed,  Ihould 
prepare  the  draft;  and  for  the  purpofealfo  of  preventing 
little  controverfies,  or  objedions,  which  might  other- 
wife  be  ftated  to  any  draft  that  could  be  propofed, 
were  afterwards  induced,  (though  againll  their  opinion 
of  propriety)  to  order  the  General  Agent  for  claimants 
to  make  the  draft. — A  draft  was  accordingly  made  by 
him; — it  was  objeded  to  by  the  Agent  for  the  United 
States ; — the  award  was  thereby  delayed  ;  and  while 
the  whole  Board  ftill  concurred  in  the  opinion,  that 
the  claimants  fhould  have  an  award,  none  in  fad  was 
ever  given. 

The  opinion  of  the  Board,  on  the  points  which  the 
cafe  involved,  was,  however,  as  much  declared  by 
their  agreeing  that  an  award  (hould  be  given,*  as  if  it 
had  adlually  taken  place. 

•  It  need  hardly  be  mentioned,  that  no  power  of  compromife y  or  in 
matlers  cill-nt  al,  ot  exprci's  conc\nrcnce  without  approbation,  is 
given  to  the  CoinmiiViuners.  Each  ot  them  is  bound  by  his  oath  to 
decide  for  or  againft  a  claim,  ;ik;curding  to  the  beft  of  his  judgment,  on 

lis    lUClit':  , 

E 


N... 


<     34     ) 


41 


April  19,  1799. 

In  the  Cafe  of  Samuel  Kerr. 

ON  the  motion  of  one  of  the  Britifli  Coinmifllon- 
ers,  the  claim  in  this  cafe  was  unanimouily  dijmijfedi 
on  the  ground  that  the  claimant,  and  the  other  fiir- 
viving  partners  of  Kerr,  Mitchel,  &  co.  in  behalf 
of  whom  he  claimed,  had  according  to  his  own  a^J.- 
miflion,  become  citizens  of  the  United  States. 


m 


April  24,  1799. 

On  the  Petition  of  Joseph  Cunliffe. 

IN  the  exercife  of  the  difcretion  given  by  the 
treaty,  J  the  Board,  on  the  motion  of  one  of  the 
Britifli  Commiflioners,  made  the  following  Orders. 

"  The  Board  having  confidered  the  petition  of 
Jofeph  Cunliffe,  and  that  no  reafon  is  ftated  why  his 
claim  was  not  prefented  within  the  eighteen  months 
prefcribed  by  the  treaty  i-^difmiffed  the  faid  claim. 


I  A  term  of  eighteen  montlis  fiom  the  fiift  conftitution  of  the  Board 
-as  afligned  by  the  article  for  receiving  complaints  and  applications  \ 
:~— : -..-...  ...1-       i!-.  "•-itjifcieis  aimiojizcu  in  any  particu- 


was 


«'  lar  cafes,  in  which  itjhould  appear  to  them  to  be  reafonable  anJiuJl, 
«  to  extend  the  laid  term  of  eighteen  months  for  any  term  not  exceed- 
*'  ingyw  months  J  after  the  expiration  thereof/' 


iH 


Ulil^ 


(    35    ) 


1799- 
I. 

imifllon- 
'ijmijfedy 
her  fur- 
n  behalf 


On  the  Petition  (?/ Aquila  Giles   and 
Eliza  his  Wife. 

"  ORDERED,  that  the  General  Agent  for  claim- 
ants fet  forth,  at  what  time  the  petitioners  did  confult 
counfel,  as  dated  in  the  petition ;  whether  they  were 
advifed,  that  they  could  not  prefent  their  claim  to  this 
Board  till  letters  of  adminiflration  were  obtained; 
ivhen  they  applied  for  the  faid  letters  of  adminiftration ; 
when  they  were  obtained  j  and  when  the  memorial,  dated 
to  have  been  fent  to  the  General  Agent,  was  fo  fent." 


»799- 

IFFE. 

by  the 
I  of  the 
)rders. 

ition  of 
why  his 
months 
claim. 


May  7,  1799. 

On  the  lafi  mentioned  Petition. 

THE  two  following  cafes  were  this  day  difmified 
on  the  motion  of  one  of  the  Britiih  Commiflioners. 

"  THE  BOARD  having  confidered  the  petition 
of  Aquila  Giles  and  Eliza  his  wife,  were  of  opinion, 
that  no  fufficient  reafon  was  given  why  the  claim  was 
not  prefented  within  the  eighteen  months  prefcribed 
by  the  treaty;  and  therefore  difmijfed  faid  petition." 


the  Board, 
ilicutions  j 
ly  partlcu- 
le  anJjuJlt 
ot  exceed- 


On  the  Petition  of  Robert  Watts. 

"  THE  BOARD  having  confidered  the  petition 
of  Robert  Watts,  were  of  opinion,  that  no  fufficient 


I 


(    36    ) 

reafon  was  given  why  the  faid  claim  was  not  prefent- 
ed  within  the  eighteen  months  prefcribed  by  the  trea- 
tyj  and  therefore  ^//;«i/7^^  the  faid  prrition." 


I 


1 

■A 


il 


May  17,   1799. 

In  the  Cafeof  William  R.  Lidderdale. 

CLAIM,  complaining  of  an  ad  of  the  ftate  of 
Virginia,   pafled  in   1777,    authorifing  payment   of 
debts,  due  from  citizens  of  the  ft  ate  to  fubje^s  of 
Great  Brit  am  ^  into  the  Lean  Office  of  the  ftatej  and 
which  payment,  was  thereby  declared  to  be  a  dif- 
chargeof  thedebt;  the  faid  adl  having  been  adjudged, 
in  a  cafe  precifely  fimilar,  in  which  the  aftion  was 
inftituted  on  the  eftablifliment  of  the  federal  judicia- 
ry, and  brought  to  a  decifion  in  the  Circuit  Court  of 
the  United  States,  in  the  year  1793,*  to  be  in  force, 
as  a  bar  to  Britilh  creditors,  notwithftandingthe  fourth 
article  of  the  treaty  of  peace,  and  that  during  the 
operation  of  the  faid  a6l,  as  a  lawful  impediment  to 
the  recovery  of  all  fuch  debts,  viz.  in  the  year  1795, 
the  debtor  (Randolph)  diedj  after  having  fettled  his 
property,  to  a  great  amount,  upon  his  family. 

OBJECTION  by  the  Agent  for  the  United  States ; 
—that,  as  payment  into  the  Loan  ofEce  under  the 
faid  aft  was,  in  the  year  1796,  declared  by  the  Su- 
preme Court,  not  to  be  a  difcharge  of  the  debt,  or 
bar  to  the  creditor,  it  was  in  law  to  be  confidered,  as 
never  having  been  fo  j— and  that,  befides,  the  claim- 
ant was  bound  to  inftitute  proceedings  in  Equity, 
for  the  purpofe  of  fctting  afide,  as  fraudulent'   the 

*  See  t!K  Cafe  of  Hanhury,  fupra. 


..  m-nttmrns^'^  . 


prefent- 
he  trea- 


799- 


DALE. 

late  of 
lent  of 
k^s  of 
ej  and 

a  dif- 
udged, 
m  was 
Lidicia- 
ourt  of 

force, 
fourth 
ng  the 
lent  to 

i795» 
led  his 


(     37     ) 

conveyances  of  property  made  by  the  debtor  after  the 
treaty  of  amity,  and  during  the  dependance  of  the 
faid  queftion  in  the  Supieme  Court. 

THE  BOARD   refolved,  (Mr.  Fitzfimons  and 
Mr.  Sitgreaves  diflenting)  that  the  recovery  of  the 
debt  in  queftion,  fo  paid  into  the  Loan  office  of  the 
ftate,  was  impeded  by  the  operation  of  the  faid  ad, 
which,  having  never  been  removed  by  a  repeal,  was 
pleaded  in  the  courts,  and  folemnly  adjudged  in  the 
year  179J,  by  a  court  of  federal  jurifdidion,  to  be  a 
bar  to  the  Britilh  creditor,  notwithftanding  the  treaty 
of  peace; — and  that,  although  the  claimant  were  7Jow 
bound  to  go  through  the  ordinary  courfe  of  judicial 
proceedings,  for  the  recovery  of  the  debt  in  quefti- 
on, it  would    not   be   incumbent  on  him,  to  infti- 
tute  proceedings,    for  the   purpofe  of  fetting   afide 
fraudulent  conveyances;    fuch   proceedings  for   the 
detedlion  and  difcovery  of  fraud,  not  being  in  the  or- 
dinary  courfe  of  judicial  proceedings  for  the  recovery 

of  debt,   within  the  meaning  of  the  article. Re- 

ferving  all  other  points  in  the  cafe ;  and  the  full  effed 
of  all  fads,  and  circumftances,  to  ftiew,  that  the  lofs 
complained  of  was  occafioned  by  the  infolvency  of  the 
debtor,  or  other  caulcs,  which  would  equally  have 
fo  operated,  if  no  fuch  lawful  impediments  had  exift- 
edj  or  by  theomiflion,  or  negligence,  of  the  claim- 
ant, within  the  provifo  of  the  article. 


states ; 
er  the 
le  Su- 
bt,  or 
■ed,  as 
:laim- 
quity, 
t,  the 


.<a&- 


May  11,  1799. 

/;/  the  Cafe  0/ Clark,  Adininiflrator  of 
Russell,  on  the  Debt  of  ].  Dorse y. 

CLAIM,  complaining  of  the  ad  of  the  ftate  of 
Maryland,  pafled  in  the  yeur  1780,  authorizing  pay- 


■Jm-mmm^m^-- 


i 


41 


■If 


Ji 

1! 

,1 

1 

b 

1 

i 


( 38  ) 

ments  into  the  treafiiry  of  the  ftate,  in  difchargc  of 
debts  due  to  perfons  who  were  not  "  fubje61:s,  and 
"  refidents  of  fome  one  of  the  United  States,"  fimi- 
lar  to  the  Loan  office  payments,  in  Virginia;  part  of 
the  debt  in  queftion  having  been  fo  paid  into  the 
treafury  of  the  flate,  and  a  cafe  exadtly  fiinilar  (the 
cafe  of  Harwood  againft  Clark  adminiftrator  of  Ruf- 
Jel  before  mentioned)  decided  againft  the  claimant  in 
the  higheft  court  of  the  ftate,  in  the  year  1795  ;  where 
it  was  held,  that  the  faid  a6t  of  1780,  remained  in  force 
againft  Britilh  creditors,  notwithftanding  the  fourth 
article  of  the  treaty  of  peace,  and  that  payment  un- 
der it,  into  the  treatury,  was  adifcharge  of  the  debt. 

OBJECTION  by  the  Agent  for  the  United  States, 
the  fame  as  in  the  preceding  cafe: — and  that  the 
claim  was  not  at  any  rate  good  beyond  the  fum  adlu- 
ally  paid  into  the  treafury. 

THE  BOARD  refolved,  that  the  faid  ad  was 
a  lawful  impediment  within  the  meaning  of  the  trea- 
ty: rejerving  the  queftion,  whether  it  operated  be- 
yond that  part  of  the  debt  which  was  paid  into  the 
treafury;  and  alfo  referving,  the  full  effect  of  all  fa6ts 
and  circumftances  to  ftiew,  that  the  lofs  complained 
of  was  occafioned  by  other  caufes,  as  in  the  prece- 
ding cafe. 

N.  B.  The  debtor  had  been  difcharged  as  an  infol- 
vent  debtor  in  the  year,  1788. 


« 


(( 


June  21,  1799. 


(< 


(( 


J./i'     l>lJO     KJUit      C/7         i. 


u O  w  ivi  A N   unuf  ui' ut^r  j  • 


CLAIM,  on  account  of  alledged  lawful   impedi- 
ments, for  debts  which  had  been  fued  for  at  law. 


np»«M^HlM»>-^ 


:hargc  of 
ecSls,  and 
s,"  fimi- 
;  part  of 
into  the 
ilar  (the 
r  of  Ruf- 
iimant  in 
5  ;  where 
d  in  force 
le  fourth 
nent  iin- 
the  debt. 

E^d  States, 

that  the 

um  adu- 


a6l  was 
the  trea- 
'ated  be- 
into  the 
f  all  fads 
mplained 
be  prece- 


an  infol- 


1799. 

^>   -/    /«    y^  MM   /% 

impedi- 
at  law. 


(  39  ) 

OBJECTION  by  the  Agent  for  tlie  United  States  • 
that  fu.ts  niould  Ihll  be  brought,  as  well  for  afcer- 
wining  the  amount,  as  to  prove,  that  the  payment 
IS  not  attainable  from  die  debtor;  or  to  excufe  the 
claimants,  for  the  negleft  of  not  making  perfonal 
"  application  for  the  debts."  °  F'=""nJ' 

Sitgreaves  diffenting)    «  that  it  is  not  mcumbent*  on 
claimants  noiv  to  bring  aftions,  or  inftitute  foits 
or  in  any  other  manner  to  proceed  againft  the  debt' 

ent  individuals  in  Londcm,  who  w^e^on  en  ed  n  l\  "'  '"^  ^n^'" 
by  one  of  the  Britiih  Con^iiflionc.:  7oon  "S  he  had  tcred 'o^H  ' 
office,  It  cannot  be  improper  here,  to  ^Ive  Mp  +1  1  ^^  °*  ^''^ 
from.hat  nKmorandum  it  lubfta  ,ce  o?  whic l^vi  "'''"^^,  'f'? 
lemembered  by  n.any  of 'thole  to  wj'om  it  was  add,:ii'd  "  '°"'^'  '^ 
Knowing,  as  I  did,  the  fair  and  honourable  views  of  Hi,  lU.'  c 


"  tne  uelcnption  of  the  article-  in,?  ft..;Ai     T^ "-".gc,  wjtniu 

«'  verlion   or  abulb       TI  is    tV.v  ifl'     ^  ^'  *^  8"'^!'^ '''g-'ii"'^  its  per, 

"  pedtri'r  irm;  c^f"'  ^"t""^'  '"'"  ^^^'^^  ^^^^^her  it  was  ex- 
tliat,  un  the  contrary,   every  well  meant  mealluc-  to  lellen  the  da. 


i 


I 


(     40     ) 

"  or,  or  his  eftate,  for  the  recovery  of  the  debts  on 
which  compenfation  is  claimed,  or  any  part  of 
them; — without  prejudice  to  the  queftion,  whe- 
ther the  claimants  ought  i?efore  to  have  fo  procee- 
ded; or  whether,  the  lofs  complained  of,  or  any  part 
"  of  it,  has  been  occafioned  by  the  manifeft  negli- 
"  gence,  or  wilful  omiflion,  of  the  claimants,  with- 
"  in  the  intent  and  meaning  of  the  provifo  in  the 
"  treaty  of  amity." 


€( 


C< 


€C 


CC 


( 


i 


r 


V 


June  26,  1799. 

\  In  the  Cafe  of  George  Anderson. 

i 

I 

\    CLAIM  for  debts,  due  from  Robert  Hart  and 
/John  Marfhall,  of  Virginia,  the  recovery  of  which 
;  was  alledged  to  have  been  prevented,  by  the  lawful 
impediments  before  referred  to.— ' 

OBJECTION  {inter  alia)    '*  that  Robert   Hart 
"  was  infolvent  at  the  peace,  and  his  eftate  unequal 


(C 


|^ 


<«  mage,  would  be  rneiitorious  ;— all /rr/i/Zow/t/ proceedings  however, 
*•  luch  as  no  prudent  man  would  relbrt  to  in  his  own  aftairs,  neceffari- 
«' ly  creating  expence,  without  a  realbnable  prol'peft  of  luccels,  were 
"  to  be  avoided  ;  as  the  additional  lofs  thereby  occafioned,  never 
*<  could  be  the  ground  of  a  claim  for  compenfation. 

«  I  added,  that  the  Board  would  no  doubt  take  occafion,  as  eai  ly  as 
«*  poiTible,  to  declare  their  opinions  on  fuch  geiieral  queitions,  as 
«'  fhould  arife  out  of  the  cafes  before  them  j  and  it  would  therefore 
««  be  extremely  material  for  the  parties,  that  claims  ftiould  be  pre- 
«*  Tented  without  delav  •.  even  though  the  evidence  were  not  ready  ;— 
«'  for  many  leading  points  might  be  determined,  on  the  lUtemcnts 
•«  contained  in  the  claims  themfelves. 

'«  I  communicated  the  fame  general  fuggeftlons  in  all  my  occafional 
««  converfations  at  London,   with  pcrfous  interelled  under  the  com- 


<t 


C( 


CC 


CC 


Cf 


CC 


CC 


CC 


«( 


mi 


iTior 


debts  on 

part  of 

3n,  whe- 

procee- 

any  part 

ft  negli- 

ts,  with- 

b  in  the 


1799. 
LSON. 

lart  and 
of  which 
e  lawful 

;rt   Hart 
unequal 


gs  however, 
,,  neceffari- 
ccels,  were 
)ned,   never 

as  eai  ly  as 
neltions,  as 
Id  therefore 
jld  be  pre- 
)t  ready  ;•— 
;:  lUtetncnts 

jr  occafional 
,er  the  cum- 


IS 

y 


(      41       ) 

ebrs,     but  that    <^  until  tdti.nony  wL.  ottered  by 

the  clanuant    t()  Jhe-za  the Jolvcncy^^  Robert  Hart 

at  the  peace        ,t  woi.lci  b.  premature  in  the  Agent 

v^nf '  United  States,  to  ofll-r  evidence  of  his  iill- 

M.7"/'  ^"^^^^P  !^'^^^'"^^  '^'''  '^'^  proceeding's  in 
the  cafe  would  thus  be  ii.lpended,  on  the  qucRion  of 
cnusprcbamlu  which  they  had  before  f.ttld  bv  the 
relohinon  of  die  6th  Auguft  1798,  in  the  caleof  W i  ! 
liam  Cunninohani  and  Company,  referred  to  that 
re  olut.on,  ami  refolved,  (Mr.  FitzHmons  and  M? 
^itgreaves  dnlenting)  that  whatever,  in  law,  ^' or  the 

"  Smnr^f '''  ''  "^^^  ^"^'^^  P'^^^^^d  [he 
^^  claimant  from  proceeding  tor  the  recovery  of  his 

-  '^™'5  'r  f  ^^''"''^  ''  ^'^^^•^  impediment  which 
'•{ifin^  f  t  '"'^'^''^'  confequently,  the  lofs 
"/  /tlT'l^^'r"^'  recovering,  was,  in   the  ^7? 

^^  iav.  il  imped,n.ent;^fo  that  it  was  not  incumbent 

on  the  clanmnt,  to  prove  the  folvency,  or  capaci- 

y  of  the  debtor,  to  fatisfy  the  credito'r  at,  or  fince 

"tt'rr.V  '^^-7  ^^  ^'- '^"'^^-l  ^^tates,  to  meet 
able  evidence  to  the  contrary. " 

And  to  prevent  mifapprehenfion,  they  thought  it 
expedient  to  exprefs  themfelves  on  this  occafon  as 
follows ,~-'c  And  although  the  Board  are  to  be  de'te  ! 

mined  by  principles  of  found  reafon  and  inftice 

"o^diffi^'i:  ^'  '^'ff  ^^  fuggellions  of   h'ardfi? 

or  difficulty  yet  defirous  as  thev  are,  in  this  areat 
;;  nanona   bufinefs,  to  difcharge  their  duty  in  a  S^ 

nei  which  rnay  be  as  generally  fuisfidlory  as  the 
^^  natural  premd.ces  of  parties  interefled  will Lmit! 
^^  they  think  it  not  improper,  in  confideration  of  the 
^^  earneft  oppofition  wliich  was  made  in  the  Board  to 

tne  above  recited  refohrinn.  in  rh^  o.,r..  ^r  r>.... 


ion,  in  the  cafe  of  C 


un- 


[A. 


I 


i 


(      42      ) 


i ' 


fc'-i 


"  ningham  and  company,  on  the  ground,  that  it  ne- 
**  vcr  could  have  been  intended,  to  impofe  To  great 
"  a  hardjhip  on  the  United  States  j  to  fuggefl  the 
"  reflexion,  that  it  cannot  prove  a  talk  of  greater 
"  difficulty  to  the  United  States,  with  all  the  means 
'*  of  enquiry,  and  information,  which  they  poflefs, 
**  and  under  their  refponfibility  ot  indemnifying  againll 
**  lawful  impediments  to  the  recovery  of  juft  debts; 
"  to  fatisfy  this  Board,  on  fufHcient  evidence,  of  what 
"  muft,  in  many  inftances,  have  been  and  may  llill 
"  be,  matter  of  great  notoriety,  viz,,  that  at  a  certain 
*'  period,  a  debtor  was  in  fuch  a  fituation,  that,  ac- 
"  cording  to  reafonable  inference.^  he  could  not  have 
"  raifed  money,  or  procured  fecurity,  for  the  pay- 
"  ment  of  a  certain  debt;  although  the  full  force  of 
*Megal  execution,  had  been  brought  againft  him; 
^'  than  it  would  be  to  a  foreign  creditor,  perhaps  the 
"  reprefentative  only  of  him  who  made  the  contrad, 
"  and  totally  unacquainted  with  the  former  fituation 
"  of  the  debtor,  to  bring  evidence  of  the  reverfe; — 
*'  the  fads  and  circumftances  neceflary  to  eftablilh 
"  the  latter  propofition,  being  in  their  nature,  at  leail 
"  as  much  afFeAed  by  the  long  lapfe  of  time  fince  the 
"  peace,  when  every  lawful  impediment,  to  the  full 
"  recovery  of  the  debts  in  queftion,  ought  to  have 
^'  been  removed,  as  thofe,  by  which  the  former  may 
"be  fubftantiated ;  and  fuch  lapfe  of  time,  fo  im- 
"  pairing  the  means  of  evidence,  being  the  juft  caufe 
"  of  complaint,  not  to  the  United  States,  but  to 
"  creditors  only,  wherever  the  delay  appears  to 
"  have  arifen,  from  the  operation  of  lawful  imped i- 
"  ments  to  the  full  recovery  of  debts,  fairly  contraft- 
"  ed  before  the  peace,  and  prote6led  againft  fuch  im- 
^*  pediments  by  the  fourth  article  of  the  definitive 
i'  treaty/' 


(    4J     ) 


Lit  It  ne- 
Ib  great 
;gefl:  the 
'  greatt'i* 
e  means 

poflefs, 
g  againll 
ft  debts; 
,  of  what 
11  ay  llill 
a  certain 
haty  ac- 
lot  have 
he  pay- 
force  of 
ift  him; 
haps  the 
:ontrad, 
fi  tu  at  ioa 
verfe; — 
eftablifh 
,  at  lead 
fince  the 
the  full 
to  have 
Tier  may 

fo  im- 
uft  caufe 
,  but  to 
pears  to 
imped  i- 
:ontra(5t- 
fuch  im- 
Jefinitive 


June  26,  1799. 
In  the  Cafe  of  Andrew  Allen. 

THE  following  refolution  was,  on  the  motion  of 
one  of  the  Britidi  Commiflioners,  this  day  unani- 
moufly  pafled. 

"  The  Board  taking  into  their  confideration,  the 
following  palfage  in  the  obfcrvations  on  the  reply, 
viz.  'In  the  cafe  of  Dodlor  Inglis,  the  Board  on 
'the    2ift  of  May,   1798,  refolved,  'that  the  claim- 

*  ant's  charader  of  Britilh  fubjed,  was  not  afFedled, 

*  or  impaired,  by  t\\^A6ko(  attainder  and  conff cation] 

*  pafled  by  the  State  of  New  York,  on  the  2  ift  of  Oc- 

*  tober,  1779,  attainting  him,  theEarl  ofDunmore, 

*  Governor  Tryon,   Sir  Henry  Clinton,    and   many 

*  other  Britifh  fubjefts,   who  are   therein  defcribed, 

*  not  as  Jubje5ls  of   the  ft  ate,  but  as  perfons  holding 
'  or  claiming   property   within    the  ftate;  and  for- 

*  feiting  and  confifcating  their  whole  eftates  real  and 

*  perfonal,    for    their    adherence   to    his    Britannic 

*  Majefty;  but  that  on  the  contrary,  the  faid  ad  of 

*  attainder,  and  the  defer iption  of  Loyalill  or  Re- 

*  fugee,  applied  to  the  claimant  on  the  part  of  the 

*  United    States  in  confcqucnce   of   his  Hiid  adhe- 

*  rence,  are  ronclufive  evidence,  that  he  ftill  main- 
'  tained  his  original   allegiance:    that   therefore,   he 

*  is  entitled  to  claim  before  this  Board,  under  the 
^fourth  article  of  the  definitive  treaty  of  peace, 
'  and  the  ftxth  article  of  the   treaty  of  amity,   be- 

*  tween  His  faid   Majefl:y  and  the  United  States/ 

*  This  refolution  has  been  exadly  recited,    becaufe 

*  it  may  be  underftood  to  have  omitted  the  cafe  of 

*  the  claimant,  who,  in  the  ad  of  attainder  and  for- 
<  feiture,  is  exprefsly  defcribed    as  a  fubjed   of  the 

*  State  of  Pennfylvania,  and  punilhed  as  fuch,  byafor- 

*  feiture  of  his  eftates  and  debts.     Indeed,  the  expref- 

*  fions  in  this  refolution  feern  to  imply,  that  if  Dodor 


;  'II 


Si 


(     44     ) 

*  Ltglis  li;id  been  attainted  /is  a  Juhjctl  of  Ne^io  York, 
'  and  his  debts  confifc  at ed  for  a  crime  committed  by  him 

*  as  a  Juhjetl^  the  Board  would  have  difinifled  his 
'  claim.  The  diflindtion  fo  explicitly  taken  by  the 
'  Board,  between  attainting  and  punifliing  a  man  as  a 
*■  Jiibje^y  and  attainting  and  punilhing  him  '  as  a  per^ 
'-Jon  holding  or  claiming  property  within  the  Statey 

*  miift  have  been  meant  for  fome  ufc.    At  all  events, 

*  this  refolution  cannot    be  confidered,    as  deciding, 

*  that  the  fourth  article  of  the  treaty  of  peace  fet 
'  afide  legiflative  a6ls  of  attainder  and  forfeiture, 
'  paflfed  aQ;ain{l  individuals  defcribed  and  holden    as 

*  fubjeds  of  the  ilate,  and  punilhing  them  for  their 
'  criminal  condu6l.     There  is  certainly  a  difference, 

*  between  a  confifcation  of  an  enemy's  property  by 

*  the  right  of  war,  and,  a  forfeiture  of  a  fubjed's 
'  property  by  law  for  criminal  condudl.* 

"  RESOLVED — That  in  the  abovementioned  re- 
Iblution  in  the  cafe  of  Dr.  Inglisy  the  Board  did 
not  decide  on  the  diftindion,  ilated  in  the  above 
pafTage  to  be  "  between  attainting  and  punifliing  a 
"  man  as  a  fubjeft,  or  attainting  and  punilhing  him 
"  as  a  perlbn  holding  or  claiming  property  within  the 
"  ftate;"  having  only  referred  to  the  lad  for  the  pur- 
pofe  of  fliewing,  that  the  cafe  Itood  clear  of  all  ob- 
jedion  on  the' ground  of  that  alledged  dillindion." 


July  9,   1799. 

In  t'hc  fame  Cafe. 

CLAIM,  for  lofles,  arifing  from  the  non  recove- 
ry of  debts  due  to  the  claimant,  being  a  Jubjedl  of 
His  Britannic  Majejly,  through  the  operation  of  an 


'lo  Tork, 
d  by  him 
Red  his 
by  the 
nan  as  a 
s  a  per- 
Statdy 
events, 
."ciding, 
iace  fet 
rfeitiire, 
Iden  as 
br  their 
Ference, 
tny  by 
ubjcd's 


)ned  re- 
ird  did 
above 
hing  a 
ng  him 
[hin  the 


le  pur- 
all  ob- 
on." 


(     45     ) 

act  of  attainder  and  confifcation,  pafled  againft  him 

as  a  Jubje5l  of  Pennjyhania,  by  "  the  reprefenta- 

nves  o     tlie  freemen   of  the  Commonwealth  of 

Pennlylvania,"  on  the  6th  day  of  March,   1778- 

for  the  crime  of  high  treajon,  in  having,  «  contrary 

to  the  allegiance  which  he  owed  to  the  faid  ftate 

'  joined  and  adhered  to  the  army  of  the  King  of 

'  Greac  Britain,"  the  faid  ad  of  attainder  and  con- 

hlcation  beuig  a  lawful  impediment,  which  operated 

againft  the  fourth  article  of  the  treaty  of  peace,  and 

within  the  meaning  of  the  fixth  article  of  the  treaty 

or  amity.  ^ 

OBJECTION,  dated  on  the  part  of  the  United 
btates,  as "  the  fir  ft  ground  of  defence''  before  the  Board  • 
r-that,  as  the  claimant  was  an  inhabitant  of  the  llate  of 
1  ennfylvania  at  the  date  of  the  declaration  of  Inde- 
pendence, he  v^^zafuhjeSf  of  that  ftate,  for  that, 
^^  in  taet,  the  United  States  were  independent  fo  ear- 

ly  as  1775,  and,  on  the  ever  glorious  and  memo- 

cc       ,f  ^'^  ']^  ^f^>   ^776,  they  folemnly  and  for- 

^^  mally,  r.eclaied  to  the  world,  that  they  were  inde- 

pendent:" -"  that  tlie  formal  acknowledgment 

of  his  Ki-itannic  Majefty,  added  nothing  to  their 
real  Independence,  and  if  tl-^  treaty  of  peace  had 

^^  never  been  made,  the  United  States  would  haveac^ 
tuaily  continued  an  independent  nation,  though  at 
war  with  Great  Britain  to  this  moment." .And 

that,  "  -'  -      ' 


tt 


though  Andrew  Allen,  after  being  a  fubjeSi 
Pcnnjylvama,  joined  the  Britifli  forces  in  De- 


I 


'99. 


•ecove- 

je£i  of 
of  an 


«  -n-    1"       ,  '■^  j^ic^jc,,   duu  as  Its  lUOieCt  to 

punilh  him,  ^  conduduig,  that  he  was  not  en- 
titled to  the  benefit  of  the  fourth  article  of  the  treaty 
of  peace,  or  iixth  article  of  the  treaty  of  amity. 

THE  BOARD  findin.g;  that  the  ob^cvflion  hi  li^ 
mine,  thus  taken  and  argued  before  thcm,^Vreciuded 
all  further  inveftigation,  took  up  the  queilion,  fo  far 


<"'¥^*»ite.il*Uijila««6^3««lii» 


'd 


!' 


I 


(       46        ) 

only,  as  it  was  neceflaiy  to  the  determination  of  the 
claimants'  national  charadter,  and  right,  to  claim — 
And,  after  full  argument  and  difcuflion,  and  with  re- 
ference to  opinions  which  had  been  folemnly  delivered 
by  the  Judges  of  the  United  States,  a  majority  of  the 
Board    propofed  a  refolution,  ftating,   among   other 
things,  that  "  the  only  difference  between  tiie  qiief- 
"  tion  in  this  cafe,  and  that  which  is  ftated  inthepre- 
*'  ceding  refolution,  confifted  in  the  different  words 
"  ofdefcription,  contained  in  the  two  feveral  ads:  but 
*'  as  theadl  of  the  ftate  ^iPennfylvaniay  could  not  have 
"  any  greater  effeft  or  operation  againll  the  fourth  ar- 
"  tide  of  the  treaty  of  peace,  than  that  oi'  New  York-, 
"  and  as  the  f3.6t  charged  to  be  a  crime,  viz.  adherence 
*'  to  the  caufe  of  His  Britannic  Majefty,  was  the  fame 
"  in  both  cafes,  the  mere  words  of  description,  affu- 
**  med  in  the  ad  of  Pennfylvania,  could  not  prove  a- 
"  gainft  the  charafter  of  the  party  as  a  Britifh  fub- 
"jedj  or  give  efficacy  to  itfeif,  fo  as  to  take  the 
*'  cafe  out  of  the  meaning  and  operation  of  the  faid 
"  article  i" — that  at  the  peace,  there  v/as  no  unconditi- 
onal fubmiffion  on  the  part  of  Great  Britain,    "  io  all 
"  that  had  been  done''  under  the  independence  of  the 
United  States,  and  the  authority  they  had  exercifed ; 
but,  "  a  recognition  by  folen in  treaty,  containing  re- 
^*  ciprocal  llipulations,  as  tiie  price  of  peace,  and 
"  for  the  mutual  benefit  of  both  countries ;"  by  the 
fourth  article  whereof,  in  favour  "of  creditors  on  ei- 
"  ther  fide,"  it  was  exprefsly,  or  in  efledt,  ftipulated, 
"  that,  no  ad:  which  had  been,  or  fhould  thereafter  be 
"  done,  or  paffed,  by,  or  under  the  authority  of  the  faid 
"  United  States,  or  any  of  them,  whatever  might  be  its 
"  form  or  import  i  whatever  the  terms  therein  employed  y 
**  whatever  tlieextentof  power  thereby  affum.ed  j  or  de~ 
*'  clared;  whatever  thecharadler  thereby  afcribed  to  the 
«'  individual  againft  whom  it  was  direded  \  flioiild  be 
"  fuffered  to  operate  as  a  la\\fLil  impediment  to  tlie  re- 
"  covery  of  debts.  *  theretofore  contradcd/  to  a  credi- 
"  tor  on  the  fide  oiMx-i  Britannic  MakHv,  at  the  date  of 


r 


C( 


<( 


(     47     ) 

"  the  faid  treaty" — concluding  alio  In  tliele  words — 
that  if  the  claimant  could  be  laid,  to  have  at  any  time 
^  made  his  eleRiori  in  favour  of  the  United  States, 
*'■'  under  the  declaration  of  Independence ^  and  fo  de- 
"  parted  for  a  time,  fubfequent  to  that  event,  from 
"  his  native  allegiance  (the  contrary  of  which  appears 
^*  to  have  been  the  cafe)  his  return  to,  and  having 
**  been  on  the  fide  of  his  faid  native  allegiance  at  the 
^'  peace,  would  have  fecured  to  him,  the  benefit  of 
*'  the  faid  fourth  article  of  the  treaty : that  accord- 
ingly, having  been  on  the  fide  of  his  Britannic 
iVIajefty  at  the  date  of  the  treaty  of  peace,  and  be- 
*^  ing  a  natural  born  fubjecl  of  his  faid  Majefly,  not 
"  barred  by  the  acceptance  of  citizenfhip,  from 
"  the  right  of  complaining  againft  the  United  States, 
"  the  claimant  is  entitled,  under  the  treaty  of  amity, 
"  to  complain  to  t!iis  Board,  of  the  faid  aCt  of  attain- 
"  der  and  confifcation  before  recited,  as  being  a  law- 
^^  ful  impediment  Wii\i\'[\  the  defcription  of  the  fourth 
"  article  of  the  treaty  of  peace,  and  the  fixth  article 
"  of  the  treaty  of  amity,  to  the  recovery  of  fuch 
"  debts  as  he  fliall  prove,  to  the  fatisfaftion  of  the 
"  Board,  within  the  meaning  of  the  faid  treaties." 


cc 


<c 


And  as  the  ground  which  had  been  taken  on  t\\z 
part  of  the  United  States  involved  a  fubjed  of  deli^ 
cacy,  on  which  they.were  defirous  not  to  give  offence, 
or  be  mifunder flood,  they  added,  that  "  the  faid 
"  principles,  and  conclufions,  contained  nothing  in- 
"  confifbent  with  that  perfed  refped,  which  is  due 
"  to  the  Independence  of  the  United  States;  as  the 
"  fame  was  recognized  on  'the  part  of  His  Britan- 
'^  nic  Majefly,  by  the  firft  article  of  the  treaty  of 
''  peace," 


To  prevent  a  vote  uj)on  this  relblution,  Mr.  Fiiz- 

'llPOPc  and  IVTr     Sitor^'Mvec;  wlrhniPW- 


m^MtmiM 


(     48     ) 


*    H 


'if 

tlii 

hi 


July  17,  1799. 
In  the  Cafe  of  Robert  Williams. 

THE  following  order  was  in  this  cafe  moved  by 
one  of  the  Britilh  Commiffioners. 

"  ORDERED,  that  the  General  Agent  for  claim- 
ants have  leave,   by  additional   argument,   to   fhew 
caiife,  why  the  claim  in  this  cafe  fhoiild  not  be  dif- 
miffed,  on  the  ground  (without  prejudice  to  all  o- 
ther  points  in  the  cafe)  that  in  equity  and  good  faith, 
this  claimant  cannot  be  permitted  to  complain  of  lofs 
arifingfrom  the  ads  of  a  (late,  to  which  as  fuch,  he 
admits,  that  in  or  about  the  year  1779,  he  declared 
himfelf  to  be  fubjeft  by  the  folemn  engagement  of 
an  oath  of  allegiance,  which  it  is  not/^r  him  to  re- 
prefent  as  invalid  ^  fuch  oath  of  allegiance  not  ap- 
pearing from  any  thing  before  the  Board,  to  have  been  - 
extorted  by  durefs,  or  induced  by  other  means  or  cir- 
cumflances,  tlian  thofe  which  arofe  from  the  o-ejuTal 
ilateof  things  at  the  time,  and  affeded  other  perfons 
Jn  the  fame  fituation,  who  neverthclels  refrained  from 
taking  fuch  oath—the  faid  additional  argument,  to 
be  laid  before  the  Board  within  eight  day^." 


! 


THERE  were  other  opinions  which  a  majority  of 
the  Board  had  often  occafion  to  declare;  fuch  as  did  not 
ipecially  rile  out  of  any  particular  cafe;   but  were  ef-. 
fential  to  the  execution  of  the  article  ^  and  mav  there- 
fore be  here  in  like  mannt:r  concifely  Rated.     ' 


UK^ta^UiaAtt^ 


(     49     ) 

They  held,  that  thofe  afts  of  feceflion,  which  had 
been  pr^difed  in  particular  cafes,  could  not  affea  the 
validity  or  operation  of  the  opinions  which  they  were 
meant  to  defeat:  for  the  very  ad  of  feceffion  impli- 
ed, what^  had   indeed    been  formally  minuted,  that 
thofe  opinions  were  the  opinions  of  the  majority, 
which  had  been  declared  in  a  Board,  completely  con- 
ftituted:  and  all  that  the  fubfequent  feceffion  of  fome 
of  the  members,  could  efFed,  was   but  to  prevent, 
what  the  treaty  did  not  require,  namely,  the  declara- 
tion of  opinions,  by  xh^  formality  of  a  vote:  that  for- 
mality being  the  accuftomed,  but  not  the  exclufive, 
modeoi  afcertaining  thefadj  which,  if  prevented  by 
an  evafive  proceeding,  might  be  fupplied  by  the  ad- 
miffion,  or  other  evidence,  that  fuch  had  been  the 
faft.     They  therefore  held,  that  the  opinions  which 
had  been  declared,  by  a  majority  of  the  Board,  were 
as  much  the  opinions  of  the  Board,  under  the  exprefs 
provifions  of  the  article,  as  if  the  form  of  a  vote  had 
not  been  fo  prevented. 

They  confidered  it  as  clear,  that  there  was  no  room 
for  explanation,  when  a  majority  of  the  Board  had 
no  doubt  \  that  every  fuch  explanation,  would  be  an 
alteration  of  the  treaty,  which  they  had  fworn  to  exe- 
cute, as  it  flood— ^ — that  therefore,  as  foon  as  the  Com- 
miffioners  had  formed  an  opinion,  they  had  no  choice 
of  proceeding;  no  power  of  compromife;  no  capa- 
city to  receive,  or  to  ad,  upon  inftrti5fmis,  in  oppofiti- 
on  to  what  they  themfelves  conceived,  to  be  the  plain 
meaning  of  the  inftrument  before  them. 

The  general  views,  with  which  the  two  nations  had 
fettled  the  article,  feemed,  to  them,  to  be  very  apparent. 
With  a  view  to  particular  cafes,  the  objed:  was  the' 
difpenfation  of  jiifice,  according  to  the  fpecial  me- 
rits, of  every  diftindt  cafe  j  either  by  an  award  of 
compenfation,  where  the  complaint  of  injury,  from 
paft  delay,  was  well  founded;  or,  by  a  conclufivere- 

G 


I' 

A; 

'.X  ii 

i 


J 


\.iHP»iM>. aji. 


.r   V 


.>, 


f 
V 


50  ) 


til 


jeclion  of  the  deiriLind,  putting  it  to  filence  forever, 
if  it  appeared  to  be  groundlefs — and,  in  either  cafe, 
dijpatch  was  eflential ;  a  dilatory  cure  for  paft  delay, 
being  a  mockery  in  terms,  as  well  as  in  effed;  and  a 
Jpeedy  rejedion  of  ill  founded  complaints,  amount- 
ing to  no  more  than  flricl  juftice,  to  the  rights  and 

chara6ler,  of  the  party  charged. In  a  larger  view, 

the  obje6l  was,  a  termination  by  means,  which  neither 
of  the  two  nations  could  controul,  ot  a  complicated 
difpute  between  them;  fuch,  as  they  could  notthem- 
felves  decide  :  a  radical  remedy  for  an  old  fore,  v/hich 
had  long  rankled  in  the  hearts,  and  interrupted  the 
confidential  intercourfe,  of  many  of  the  mofl  valuable 
fubjeds  of  both. In  conftruing  the  article,  a  ma- 
jority of  the  Board  was  therefore  well  convinced,  that 
every  opinion  which  tended  to  uncertainty,  indecifion, 
and  delay,  was  mod  effentially  erroneous:  that  every 
proceeding,  which  went  to  convert  a  folemn  national 
arbitration,  for  the  known  and  declared  purpofe  of 
final  fettlement,  into  tlie  worft  fpecies  of  j)rotra(5led 
negotiadon,  was  totally  inadmiflible  under  the  trea- 
ty- 

A  bare  perufal  of  the  article;  every  line  of  which 
anticipated  the  occurrence  of  difference  of  opinion ; 
(unavoidable,  as  from  the  variety  of  involved  mat- 
ter to  be  fettled,  it  certainly  was) ;— which  provided 
for  it,  not  only  in  exprefs  terms,  by  declaring  that 
the  opinion  of  the  majority  fliould,  **  in  all  cafes,  both 
to  tfie  J  lift  ice  of  the  complaint,  and  the  amount 


a; 


*'  of  the  lum  to  be  paid,  be  final  and  conclufivej'* 
but  alio,  by  the  flrudure  and  conformation  of  the 
Board,  which  was  madeto  confiil  of  an  unequal  num- 
ber of  members  (either  five  or  three,)  for  the  very  pur- 
pofe of  giving  certainty  of  decifon,  in  all  cafes  whatfo- 
cver;  in  cafes  of  divifion,  as  well  as  unanimity — was 
fufHcient  to  prevent,  as  they  conceived,  the  poflibili- 
ty,  of  any  ferious  apprehenfions,  that  mere  difference  of 
opinion,  on  any  fubjed,  whether  it  refpeded  the  juftice 
€f  the  claim  within  the  meaning  of  the  treaty,  or  the 


foreverj, 
her  cafe, 
ift  delay, 
:;  and  a 
amount- 
;hts  and 
;er  view, 
1  neither 
iplicated 
ot  them- 
e,  v.'hich 
3ted  the 
valuable 
e,  a  ma- 
:ed,  that 
decifion, 
lat  every 
national 
irpole  of 
otraded 
the  trea- 


f  which 
opinion ; 
ed  mat- 
)rovided 
ng  that 
'es^  both 
amount 
lufivei" 
1  of  the 
al  num- 
try  pur- 
whatfo- 
:y — was 
)oflibili- 
'.rence  of 
e  jtiftice 
,  or  the 


(    s«    ) 

amount  of  the  damages  incurred,  could  be  made  a 
pretext,  for  difappointing  the  whole  fpirit,  as  well  as, 
the  letter  of  the  article. 

They  believed,  that  as  neither  of  the  two  nations 
could  be  fuppofed  capable,  of  appointing  men  to  the 
confidential  fituation  of  national  arbitrators,  to  decide 
upon  a  fubjecft,  fo  extenfive  and  involved,  and  with 
powers  fo  abfolute,  as  to  offer  ample  means  of  fe- 
cret  perverfion  and  abufe;  fuch  as  might  be  praclifed 
with  fo  much  plaufibility  of  appearance,  and^^^i  a- 
f/eementy  among  themfelves,  as  to  prevent  detedion, 
or  even  general  cenfure;  nay,  perhaps,  to  attract  ap- 
plaufe: — as  neither  of  the  two  nations  were  capable  of 
appointing  men  to  fuch  a  fituation  of  important  trufl', 
without  the  recommendation  of  unblcmiilicd  reputa- 
tion, and  competent  ability,  there  was,  in  the  charac- 
ters of  fuch  men,  and  the  alfurance  of  an  oath,  the 
only  guarrantee  for  juft  and  impartial  determinati- 
on, which  the  imperfect  ftate  of  human  aiiairs  can 
afford. 

Finally,  for  themfelves,  they  did  certainly,  with- 
out the  confcioufnefs  of  much  arrogance,  conceive, 
that  opinions,  which  the  pai^ties  had  invitcdy  and  called 
upon  them,  folemnly,  to  declare  upon  oath,  accord- 
ing to  the  beft  of  their  judgment,  were,  when  fo  de- 
clared, to  be  received,  by  thofe  parties,  with  refped, — • 
while  they  determined,  by  their  condudl,  and  a  fair 
difclofure  of  their  principles,*  to  difprove  the  furmife 


*  The  taflc  they  impofed  upon  themfelves,  of  ftating  the  general 
grounds  andcourfe  of  reafoning  on  which  tucir  refolutions,  or  opinions, 
\vere  founded,  arofe  chiefly  from  this  cuniideration.  It  had,  bclldcs, 
the  efte£l  to  inform  parties  and  agents,  on  the  one  fide  and  the  other,  of 
the  principles,  on  which  the  Board  would  proceed,  in  finillar  cafes  j  the 
advantage  of  which,  in  point  of  order  and  dlfpatch,  is  apparent. 
i.Ceitaiii  it  is,  that  no  fct  of  men  wi)o  were  notconfcious  of  meaning 
well,  and  did  not  hold  their  rtufons  lo  be  inch  as  niiaht  to  be  fatisiac- 
tory,  vvpuld  ever  have  adopii.il  this  practice.  The  fiat  of  a  faigle 
line  muft  in  that  cafe,  have  been  far  mcne  fafe  and  convenient. 

One  word  more  on  the  couife  of  their  pi'ocecdings ; — if  a  majority. 
of  the  Board  had  been  ('ilfpofi-d  to  keep  up  the  machinery  of  the  com- 
iiiiflion  as  An  enjjmc  cf  j  olicy,  iiicentljt  to  ini^'cnd  fur  u  convenitnt 


i 


*■« 


xanmimaitmiikm- 


•'^I 


(  52  ) 

(which,  ifjuft,  would  have  fuggefted  a  fimple  mode, 
tor  a  diflati.fied  party,  to  fufpend,  or  invalidate, 
the  decifions  of  every  fet  of  arbitrators,  who  could 
be  chofen,)  that  becaufe  they  had  been  unjuftly 
reproached,  and  were  therefore  difpleafed,  they  could 
no  longer  be  confidered,  as  capable  of  impartial  deli- 
beration. 


1^ 


m 


THE  laft  proceeding  of  the  Board  was  the  moti* 
on,  which  has  been  reported,  in  the  cafe  of  Robert 
Williams,  on  the  17th  of  July. — - — 

The  CommifTioners  of  His  Britannic  Majefty,  and 
the  fifth  Commiffioner,  attended,  as  ufual,  on  the 
next  day  of  fitting,  when  the  Secretary  delivered 
to  them  a  letter,  from  the  two  American  CommifTion- 

length  of  time,  the  determination  of  the  claims  before  them,  they 
would  have  done,  what  indeed  had  (perhaps  very  innocen'ly)  heen  pro- 
pofedj-^they  would  have  begun  in  every  cafe,  with  an  inveftigation  and 
couife  of  difciiflioa  and  evidence,  on  every  item,  of  every  account, 
znAended,  (after  the  expiration  perhaps  of  many  years,)  with  rhequef- 
tion,  how  far  thofe  claims  were  at  all  admifTible,  under  the  treaty  ?  they 
would  in  filence  have  palled  over  the  general  objeftions  of  the  United 
States,  on  fa6ts  which  were  admitted,  and  might  be  conclufive,  in  order, 
to  exercife  their  own  diligence,  and  the  patience  of  all  concerned,  in  the 
examination  of  accounts  and  evidence,  (at  no  fmall  expence  to  the  par- 
ties) which  might,  in  the  end,  be  found  to  have  bad  no  title  to  their 
confideration. — 

They  proceeded  on  a  different  fyftem  ;  deciding  all  general  objefli- 
ons  firll ;  in  the  order  fuggefted  by  the  extent  of  their  influence  on  o- 
ther  cafes  :  and  they  didfo,  with  as  much  diligence,  as  the  inferior  mat. 
ters  of  common  routine,  the  interruptions "occaficned  by  the  preva- 
lence of  the  yellow  fever,  (during  which  however  they  made  no  ad- 
journment,) and  other  interruptions,  would  permit.  Two  more  general 
qucftiuns  only,  remained  to  be  determined. 

The  inveftigation    of  difputed  fafts,  including  the  proof  of  debts, 
(which   might   pofTibly  have  proved   fatal  to   many     claims)  would 
have  been  carried  on  upon  a  plan  of  proceeding,  already  in  the  courfe  of 
operation,  by  which  that  important  buiinefs  might  have  been  coire<JHy 
finilhed,  within  a  realbnable  period  of  time, 


le  mode, 
i^alidate, 
10  could 
unjuftly 
ey  could 
tial  deli- 


e  motj* 
Robert 


\y,  and 

on  the 

elivered 

mifTion- 


MTi,  they 
Ween  pro- 
bation and 
'  account, 

I  thequef- 
aty  ?  they 
he  United 

in  Older, 
led,  in  the 
3  the  par- 
le  to  their 

II  objefll- 
:nce  on  o- 
"rior  mat- 
fie  preva- 
le  no  ad- 
re  general 

of  debts, 
s)  would 
courfe  of 
CQire<JHy 


(    53    ) 

ers,  dated  the  19th  of  July,  and  addreffed  to  the 
three  other  members  of  the  Board;  in  which  the 
American  Commiflioners  declared  a  determination, 
*'  under  the  exilting  circumftances,  not  to  give  their 
"  further  attendance"  in  the  Board;  and  promifed  to 
explain  their  motives,  in  a  future  communication. 

And  by  another  letter,  dated  the  a  2d  of  July,  they 
aflTured  the  three  other  Commiflioners,  that  they 
would,  "  without  any  avoidable  delay,"  communi- 
cate the  explanation  they  had  promifed. 

About  fix  weeks  after,  viz.  on  the  3d  of  Septem- 
ber, the  three  other  Commiflioners  did  accoidingly 
receive  a  communication,  from  the  two  American 
Commiflioners,  in  a  letter  of  fifty-five  pages,  dated  on 
the  preceding  day,  every  line  of  which  proved  the 
great  difliculty  of  the  fubjed,  even  in  the  hands  of 
men  of  ability.  It  referred  to,  and  profefled  cor- 
redbly  to  fl:ate,  all  the  difl'erences  of  opinion,  which 
from  firfl:  to  laft  had  occurred  in  the  Board  j  afcribing 
the  hardy  meafure  they  had  adopted,  not  to  one,  or 
a  few  of  thofe  differences,  but,  equally,  to  all.  It 
was  an  argument  of  many  words,  which  terminated 
at  every  period,  in  this  fimple  and  conclufive  point, 
that,  under  the  fixth  article  of  the  treaty,  no  opinion 
in  favour  of  a  Britifli  fubjed  was  good,  without  the 
concurrence  of  the  American  Commiflioners ;— or, 
that  by  an  unfortunate  fatality  (for  no  corrupt  inten- 
tion was  afcribed  to  them)  all  the  opinions  which 
had  been  declared  by  the  three  other  Commiflioners,  or 
any  of  them,  in  favour  of  claimants,  were  radically 
erroneous  and  bad;  while  thofe  which  they  had  de» 
clared  in  favour  of  the  United  States,  were  perfeclly 
well  founded. 

The  three  members  of  the  Commiirion,  who  were 
thus,  at  once,  deprived  of  all  power  of  performing 
their  fundions,  on  grounds,  as  now  declared,  and  in  a 
manner,  which  admitted  of  little  profpeftoffatisfadory 
ftdjuftment,  did  not,  (as  may  perhaps  have  been  exped- 


1^ 


I 


\^^l^iife*«*ii«*^ftii*-t'- 


Jl  • 


(     J4     ) 

cd,)  take  their  leave. They  had  no  concern 

with  national  confiderations : — but  many  individuals 
were,  in  confequence  of  the  Rules  and  Orders  of  the 
Board,  either  in  attendance,  or  ready  to  appear,  from 
very  diftant  parts;  and  as  the  bufinefs  was  now,  not- 
withftanding  the  various  interruptions  which  had  oc- 
curred, fo  far,  in  eflfential  matters,  advanced  j  it  was 
defirable  to  preferve  at  lead  the  poffibilityy  of  meeting 
fuch  a  change  of  meafures,  as  might  enable  them  to 
bring  it  to  a  conclufion. 

One  of  His  Britannic  Majefty*s  CommifTioners,* 
and  the  fifth  CommifTioner  therefore  remained  j  ready 
as  by  their  attendance,  they  officially  announced,  at  all 
times  to  aflift  in  the  formation  of  a  Board,  for  the  dii- 

patch  of  bufinefs. But  they  have  never  fince  been 

met  by  any  Commiflioner  on  the  part  of  this  coun- 
try. 


.-  J 


*  Ml*.  Macdonald  intends,  however,  loon,  to, take  thr  bcii:fit  of  a! 
peimiflion,  received  by  the  February  Packet,  which  puts  it  in  hia 
power  to  *<  avail  himlclf  of  the  prellnt  fulpenfion  in  the  pioceediugs, 
**  of  the  Commifllon,   of  which  he    it)  a  ni ember,    by  returning  tu 

England,  on  leave  of  abfcnce." 


K 


• 


APPENDIX. 


J" 


concern 
ividuals 
"s  of  the 
ar,  from 
w,  not- 
had  oc- 
j  it  was 
meeting 
:hcm  to 


loners,* 
i  ready 
d,  at  all 
the  dii- 
ce  been 
3  coun- 


cil:' fit  of  a, 

it  in  hia 

oceeiiiu^s, 
urnin^-  t'j 


li 


S^DIX. 


J" 


■^  l>W«*.T,»l,W|«W*W*»»<  ' 


v, 

i 

! 

! 

1 

1 

1     ' 

A 

!    I 


1 


APPENDIX. 

No.    I. 

J^rticles  firfl  fourth,  fifth,  ami  {m\i  of  the  Dcfniii^e  Trea!,  of! 
rcace,  bt't-^ecn  his  B>ttanmc  Majvfty,  and  the  V nit ai  States  o?  A. 
nenca,  figncd  at  Faris  the  ^d  of  September y   1783. 

•  ^jh  ^''^'    .*'  ^^^  Sritamnc  Majefty  acknowledges  the  faid  U- 
Zdp'rTi  ^''^•/'^'^^^^"-/A>^>  Ma//ach^Oetts  B.y,  Rhode  If  and 
^^^P^o^ndence  Plantations,    Conneihcut,    Ae^  rork,    NenA,  Jer/h 
J^eyk;a,>a,    Delaware,    Maryland,     V^grma,     North  CaroLi\ 
i>outh  Larohna,  and  Georgia,    to  be  Free,  Sovereign,    and    Inde! 

iclt,  His  Heirs,  and  Succeflors,  reimquifhes  all  Claims  to  the  Go. 

7v'?ZT^{       T"^'"^'^""'""''^'^''"^^**^^^^«"^«'  and  eve- 
ly  ran  tnercoi. 

Art.  furth.  "  It  is  agreed.  That  Creditors  on  either  Side  fhall 
fiieet  with  no  lawful  Impediment  to  the  Recovery  cf  the  full  Value 
in  bterhng  Monev  of  all  l^ona  fde  Debts  heretofore  contraaed. 

Art.  f/th  -  It  ,8  agreed,  That  Congrcfs  (hall  earnelUy  recom- 
nietid  u  to  the  Leg.natures  of  t!ie  relpedlve  States,  to  providefor 
ti^  Relhtution  of  al  Eflates,  Rights  and  Properties  w'iich  have 
been  confilcated  belonging  to  real  ^r;///.^Subiedts:  And  allb  of 
the  ^ftates.  Rights  and  Properties  of  Perfons  rcfident  in  Diftria«5 
in  the  PoiTeflion  of  His  Majefly's  Arms,  and  who  have  not  bo  me 
Arms  againft  the  faid  Unitecl  States:  And  that  Perfons  of  any  otle" 
De  cnption  fhal  have  free  Liberty  to  go  to  any  Part  or  Parts^of  any 
of  the  rhmcen  Unaed States,  and  therein  to  remain  Twelve  ^v,nths 
unmolefled  in  their  Endeavours  to  obtain  the  Rcilitution  of  fuchof 
their  Eilates,  Rights  and  Properties  as  may  have  been  confifcated  - 
And  that  Congrefs  ihall  alfo  earntftly  recommend  to  the  fbvcral 
Mates,  a  Reconfideration  and  Revifiun  of  all  Ads  or  Laws  rerard- 


fhould  univerialiy  prevail.  And  that  Congrefs  (hall  alfo  earneftli! 
recommend  to  tne  fevenl  States,  that  the  Eftates,  Rights  and 
Propernes  of  fuch  ka-mentioned  Perfons  fliall  bereltored  to  them 
?^^  fef'^"-?"g;<'  any  Penons  who  may  be  now  in  Pofleflion  the 
^^««/^.  Price  (where  any  has  been  given)  which  fuch  Perfons  may 
have  paid  on  purchafing  any  of  the  fa.d  Lands,  Rights  or  Proper- 
ties  fince  the  Confifcation.  ^  f  foper- 

./fir^""^  ,''r  "  T'^'h  ^^l"^'  '"  ^^^^"'^^  ^^^o  ^a^e  any  Intereft  in 
cODfifcated  Lands,  either  by  Debts,  Marriage  Settle^cn;s,  or  o" 

H 


I' 
I 


i 


l\i 


(     S8     ) 

thenviCe,  fliall  meet  with  no  lawful  Impediment  in  tiic  Profecution 
of  their  juft  Rights. 

Art.  J?xt^.  "That  there  (liall  be  no  future  Confifcatlons  made, 
nor  any  Profecutions  commenced  againft  any  Pcribn  or  Peribn'., 
for  or  by  Reafon  of  the  Part  which  he  or  they  may  have  taken  in 
the  prefent  War ;  and  that  no  Perfon  fhall  on  that  Account  fufFer 
any  future  Lofs  or  Damage  either  in  his  Perfon,  Liberty  or  Property ; 
and  that  thole  who  may  be  in  Confin^iment  on  fuch  Charges  at  the 
Time  of  the  Ratification  of  the  Treaty  in  u'Imerica,  Ihali  be  im- 
mediately fet  at  Liberty,  and  the  Profecutions  fo  commenced  be 
difcontinued. 


ill 


m 


No.    II. 

_  Articles  fixth,  feventh,  eighth,  tenth,  end  part  of  the  twcuiy 
eighth  a>yj  lail  articlts  of  the  Treaty  of  Amity,  Commerce,  and 
Navigation,  h^n-veen  His  Britannic  Majejiy,  and  the  United  States 
of  /Imerica  ;  concluded  at  Wejiminjlcr  the  1  C)th  day  cf  No^oemher  1  79+j 
'\th  the  Vrefidint^i  Proclamation  announcing  the  Ratification  thereof—^ 


nvi 


hxi.  fixth.  "  Whereas  it  is  alledged  by  divers  Britifh  merchants, 
and  others  His  Majelty's  fubjeds,  that  debt'  to  a  confiderable  a- 
mount,  which  were  bona  fide  contracted  bet^.e  the  peace,  ftill  re- 
main owing  to  them  by  citizens  or  inhabitants  of  the  United  States, 
and  that  by  the  operation  of  various  lawful  impediments  nnce  the 
peace,  not  only  the  full  re-ov  ry  of  the  faid  debts  has  been  delay- 
ed, but  alfo  the  value  and  1"curlty  thereof  have  been,  in  feveral  in- 
ftances.,  impaired  and  leiTened,  {0  iIihc  by  the  ordinary  courfe  of 
judicial  proceedings,  the  Britilh  creditors  cannot  now  obtain,  and 
aftually  have  and  receive  full  and  adequate  compenfation  for  the 
lofles  and  <^amages  which  they  have  thereby  fuftained  :  It  is  agreed, 
that  in  all  fuch  cafes  where  full  compenfation  for  fuch  loifes  and  da- 
mages cannot  for  whatever  reafon  be  actually  obtained,  had  and  re- 
ceived by  the  faid  creditors  in  the  ordinary  couife  of  jullice,  the  Uni- 
ted States  will  make  full  and  complete  compenfation  for  the  fame  to 
the  faid  creditors:  But  it  is  diiHn(::lly  underltood,  that  this  provifi- 
on  is  to  extend  to  fuch  lofll's  only  as  have  been  occafioned  by  the  law- 
ful impediments  aforefaid  ;  and  is  not  to  extend  to  lolfcs  occafioned  by 
luch  infolvency  of  the  debtors,  or  other  caufes  as  would  equally  have 
operated  to  produce  fuch  iofs,  if  the  fiid  impediments  had  not  exill- 
ed ;  nor  tr  inch  lolTcs  or  damages  as  have  been  occafioned  bv  the  ma- 
nifell^'    ay  or  negligence,  or  wilful  omiiri::>n  of  the  claimant. 

'*  For  the  puipofe  of  afcertaining  the  amount  of  any  luch  lofTes 
and  damages, /v£' Commiffioners  fliall  be  appointed,  and  autho- 
rifed  to  meet  and  act  in  manner  following,  viz.  Two  of  them  Oial! 
be  appointed  by  His  Majefty,  two  of  tliem  by  the  Prefident  of  the 
United  States  by  and  v/ith  the  advice  and  confent  of  the  Senate 
thereof,  and  the  fifth  by  the  unanimous  voice  of  the  other  four ; 
and  if  they  lliould  not  agree  in  fuch  choice,  then  the  Comniiajon  ■ 


■  -f^rr^.Hatmmri'im^^^i 


rofecuiion 

ons  made, 
'  Peri'on'j, 
taken  in 
)unt  fufFer 
Property ; 
ges  at  the 
,11  be  im- 
lenccd  be 


7e  tucnty 
^rce,  and 
/eJ  Stairs 
ber  179+3 

crchants, 
erable  a- 
,  ftill  re- 
id  States, 

iiDce  the 
en  delay- 
3veral  in- 
courle  ot' 
:ain,  and 
n  for  the 
s agreed, 
■s  and  da- 
d  and  re- 

theUni- 
e  fame  to 
5  proviH- 

the  law- 
fioned  by 
allv  have 
not  exill- 
.'  thcma- 
;int. 

ach  lofles 
id  autho- 

nt  of"  the 
;  Senate 
er  four ; 
nniifljon- 


(    59    ) 

«rs  named  by  the  two  parties  fiiall  refpetlively  propofe  oj^e  perfon, 
and  of  the  two  names  fo  propoicd,  one  fhali  be  drawn  by  lot  in  the 
prefrnce  of  the  four  original  Commiffioners. — When  the  five  Com- 
i:iuii()ners  thus  appointed  (hall  firft  meet,  they  iball,  before  they 
proceed  to  adf,  rdbedively  take  the  following  oatli  or  attirniation, 
in  the  pre'enceof  each  other,  which  oath  or  cfHrmation  being  fo 
take  n  and  duly  attelled,  fhall  be  entered  on  the  record  of  their  pro- 
ceeding., viz.  I,  ^jff,  one  of  the  Commiffioners  app  'ntedinpur- 
luance  of  the  fixth  article  of  tiie  treaty  of  amity,  conunerce,  and 
navigation,  between  His  Britannic  Majelly  and  the  United  States 
of  America,  do  folemi.ly  fwcar  (or  affirm)  that  I  will  honeilly, 
diligently,  impartially,  and  carefully  examine,  and  to  the  belt  of 
ny  judgmer.t,  according  to  jufiice  and  equity,  det..;!:  all  fuch  com- 
plaints, as  uiider  the  faid  article  Ihali  be  preierred  to  the  faid  Com- 
mi/ljoners;  and  that  I  will  forl-ear  to  ad  as  a  Commiffioner,  in 
any  cafe  in  whicii  I  may  be  perlonally  interefled. 

"  Three  of  the  faid  Commiflioners  tliall  conltitute  a  Board,  and 
fliall  have  p  nver  to  do  any  ad  appertaining  to  the  faid  CommilTi- 
on,  providec.  that  one  of  the  Commiffioners  named  on  each  fide, 
and  the  filth  CommilHoncr  iball  be  prefent,  o?!d  all  dicifions  pall 
he  made  by  the  majority  of  the  ^joucs  of  the  CojnmfJJioners  then 
prefent  \  eighteen  months  from  the  day  on  which  the  laid  Ccm- 
niiffioners  fiiall  form  a  Board,  and  be  ready  to  proceed  to  bufineis, 
are  alligned  for  receiving  complaints  and  applications ;  but  they 
are  neverthelefs  authorized,  in  any  particular  cafes  in  which  it  fiiall 
appear  to  them  to  be  reafonable  and  juft,  to  extend  the  laid  term  of 
eighteen  months,  for  any  term  not  exceeding  fix  months,  after  the  ex- 
piration thereof.  The  faid  Commimoners  fiiall  lirlt  meet  at  '-"liladel- 
phia,  but  they  fiiall  have  power  to  adjourn  from  place  to  place  as  they 
iball  fee  caufe. 

"  The  faid  Commiffioners  in  examining  the  complaints  and  appli- 
cations fo  preferred  to  them,  are  empowered  and  required,  in  nurfu- 
anceof  the  true  intent  and  ineaningof  this  article,  to  take  into  their 
coufideration  all  claims,  whether  or  principal  or  interefi,  or  balances 
of  principal  and  interelt,  and  to  determine  the  fame  refpedively,  ac- 
cording to  the  merits  of  the  fevcral  cafes,  due  regard  being  had  to  all 
the  circumfiances  thereof,  and  as  eq'jity  and  juilice  fiialf  appear  to 
them  to  require.  And  the  faid  Commifii'mers  fiiall  have  power  to  ex- 
amine all  ;uch  perfons  as  fiiall  come  before  them,  on  oath  or  affirma- 
tion touching  the  premifes ;  and  alfo  to  receive  in  evidence  according 
fis  they  may  think  mofi  confiilent  with  equity  and  jufiice,  all  written 
depofitions,  or  books,  or  papers,  or  copies,  or  extrads  thereof;  every 
fuch  dcpofition,  book,  or  paper,  or  copy,  or  e;;trad,  being  duly  au- 
thenticated, eitiier  according  to  the  legal  forms  now  refpedively 
cxitting  in  the  two  countries,  or  in  fuch  other  manner  as  the  faiJ 
Commiffioners  fiiall  fee  caufe  to  require  or  allow. 

*'  The  a^xvard  cf  the  faid  Ccmniijf our;,  or  of  any  three  rf  them,  rs 
iforifcud,  Jhall  in  all  cafes  be  final  and  conclufve,  both  as  to  the  juf- 
iice of  the  claim,  and  to  the  amount  of  the  f urn  to  be  paid  to  tie 
creditor  cr  claimant:  And  the  United  States  undertake  to  cauie 
Ihc  fum  fo  awarded  to  be  paid  in  fpecie  to  fuch  creditor  or  claimant 


1,1-; 


SiS*-vi»i.,.» 


I 


^1  ! 


J' 


(    6c    ) 

without  deduaion  j  and  at  fuch  time  or  times,  and  at  Tuch  place  ev 
places  as  fhall  be  awarded  by  the  faid  Commiffioners ;  and  on  con- 
dition of  fuch  releafes  or  aflignments  to  be  given  by  the  creditor  or 
claimant,  as  by  the  faid  Commiffioners  may  be  direded  :  Provi- 
ded always  that  no  fuch  payment  fnall  be  fixed  by  the  iaid  Com- 
miflioners  to  take  place  fooner  than  twelve  months  from  the  day  of 
the  exchange  ot  the  ratifications  of  this  treaty." 

Art.  /e'vent^.     «'  Whereas  complaints  have  been  made  by  divers 
jnerchants  and  others,  citizens  of  the  United  States,  that  durinp- 
the  courie  of  the  war  in  which  His  Majeify  is  now  engaged,  they 
have  fuftained  confiderable  loiTes  and  damage,  by  reafSn  of  irregu- 
lar or  Illegal  captures  or  condemnations  of  their  veflels  and  other 
property    under  colour  of  authority  or  commiflion.s  from  His  Ma- 
jeity,  and  that  from  various  circumflances  bcl  H>oing   to  the  faid 
cales,  adequate  compenfation  for  the  loiTes  and  damages  fo  fuftnin- 
ed  cannot  now  be  aaually  obtained,  had  and  received  by  the  ordi- 
nary courfe  of  judicial  proceedings ;  it  is  agreed,  that  in  all  fuch 
caies,  where  adequate  compenfation  cannot,  for  whatever  rtafon, 
be  now  aaually  obtained,  had  and  rec-ived  by  the  faid  merchants 
and  others  in  the  ordinary  courfe  of  jufiice,  full  and  ccmpietecom- 
r^enfation  for  the  fame  will  be  made  by  the  BritKh  Government  to 
the  iaid  complainants.     But  it  is  diiHnctly  underttood,   that  this 
provnion  is  not  to  extend  to  fuch  loifes  or  damages  as  have  been 
occafioned  by  the  manifell  delay  or  nugHgencc,  or  wilful  omif-on 
01  the  claimant. 

"  That  for  the  purpofe  of  afcertaining  the  amount  of  anvfuch  Iclf- 
es  and  damages,  five  Commifioners  fhall  be  appointed  and  auihori. 
zed  to  aa  ,n  London,  exadly  in  the  manner  uireded  with  refped 
to  thofe  mentioned  in  the  preceding  article,"    &c    &c    &c 

tinll'^'^^^t^'  '\  !^^\^"^^^^'- agreed,  that  the  Comnii doner's  men. 
tioned  in  this  and  in  the  two  preceding  nrticles  fhall  be  refpedive- 
ly  paid  in  fuch  manner  as  (hall  be  agr.  ed  beaveen  the  two  parties- 
uch  agreement  being  to  be  fettled  at  the  time  of  the  exclLge  of 
the  ratifications  of  this  treaty.  And  ail  other  expences  attauJini 
t  e  a:d.omm,inons  fhall  be  defrayed  joinrly  bv  L  two  paTi"^ 
the  fame  being  previoully  afcertained  and  allowed  by  the  niaioritv 
of  the  Commiffioners.     And  in  the  cafe  of  death,  ikknefs ^  / 

fe.  f  "l-  ^- P'''.'  of  every  fuch  Commifnoner  refpediveiy 
iball  be  fupplieJ  m  the  fame  ma.ner  as  fuch  Commiflio.er  was 
firfl  appointed,  and  the  new  Commiffioners  fliall  take  the  fame 
oath  or  aflirmation  and  do  the  Uim    ' nie.  " 

Art   /....?.     -  Neithei  the  debts  .    :  from  individuals  of  the  one 
ration  to  individuals  of  the  other,  nor  fhu^es,  nor  monies  whkh 

hey  aiay  have  in  the  public  funds,  or  in  the  public  or  p  -I'c 
banks,  fhall  ever  in  any  event  of  war  or  natio.nal  difFeren^ces  be 
fequefieredorconfifl-ated;  /.  ^./;^  ..^^y  ,,,^  //././.'/.  th. at  debts 
and  engagements  contraaed  and  made  by  individuals  having  eon! 
fiucuLc  in  cacn  other  and  in  their  relpedive  ecA-ernments  n,onn 
ever  be  ddlroyed  or  impaired  by  national  au^.d  ^  n  a  ^ou  t  o  ' 
;iational  differences  and  difcontents."  '^^'-ount  ol 

*h',^[''  y'^^':ff'^'-     "  ^t  is  agreed,  that  the  firfl  ten  articles  of 
;lm  treaty  fhall  be  permanent,  and  that  the  fubfcquent  mucles! 


(     6i     ) 

except  the  twelfth,  fhall  be  limited  in  their  duration  to  twelve 

r  t^'eaVi^^iTbre:^,!::;?^^  '-^  -  -'-^^^  ^'^  -^^«-^-^  or 

wuh  th.  advice  and  confentof  their  Senate,  .the  re^SaUe^^^^^ 
^oauonsn^utually  exchanged,  fl.all  be  binding  ad  2,  tyoa 
H.  Majefty  and  on  the  (aid  States,  and  fl,all  be  bv  thcnfrcfol^t 
ively  executed,  and  oble.ved,  with  panduabty  and  the  mo  Ht 
ce.e  regard  to  good  iui-.h  ;  and  whereas  it  will  be  expedienr  n  ;" 
^c  the  better  CO  facilitate  intercourse  and  obviate  diHcult;  that 
o^^^^r  art:aes  b«  propoied  and  added  to  this  treaty,  which  a  licH 
f^otn  wane  of  ttme  and  other  circumllanccs,  canno;  now  be  pe  f  d-' 

readily   tuac  of  and  concerning  Inch  articles,  and  will  fincerelv 

vuuence,  .nd  tend  to  promote  mutual  fatisfaftion  and  trienolhin  - 
and  that  tne  laul  articles,  after  having  been  duly  ratified  flaUb; 
adaed  to,  and  make  apart  of  this  treaty.  In  faith  whereof,  ic&c.'' 

-vvu.        P^^ocLAMATio.N'  by  the  President. 

thenu  "" '  'f  '  ?'^'''  .^''' '"'''  "  ^"^  ^^^^^^'-'^^  the  faid  Treaty  with 
the  additional  article  which  (togetherconlHtute  o.eTreatvTh.rbv 
Me  on  the  one  part,  and  by  His  l^ritrnnic  Majcily  on  £  ct  -er 
been  duly  approved  and  ratified  ;  and  the  ra.ifica  ion«  were  dul  ev' 
ch^ged  at  London  on  the  28th  day  of  Odober  on'  thoufand tv^; 
hundred  and  ninety  five:  Now  therefore,  to  the  end  thnt  the  faid  Tr' 

LTrT.':dro"H^-',^^ 

nrX,  L?  F  '-r'  °"  '^^  P'""  °^  '^''  United  States,  J  hcrrby 

riKike  known  the  prem,fe«  ;  ..^  .././,  ,„,/  ,    , -,,  ^/^        'J^  ;;;;^^> 

oj^cec.-.^l  or,u/,,,,y^  within  the  United   States,   and  all   othe;f 

citi7xMisor  inhabitants  thereof,  or  beinp- within  th^  fame    L  ' 

.^^..  the  laid  Trea.  accordingi;:^DateJ  the  ^ui  cl^^^^: 


I 


No.   III. 

J^'numof  the  opening,  and  reciprocal  cofnmunlcat.cn,   hy  the  Bri 
t:,oand  A.^^eruan    C.mnuffioncrs,  of  then-  refi^emn.,  Co^Z£: 
and  Of  the  appouUmcnt  of  u  ffth  Conimifkncr.  '^'^^'^'M^-n^  , 

TK  '  ™^f  °"^'^'ff  "^••''  'Appointed  by  His  Britannic  rjajeav    viz 
Thomas  Macdonald  and  Henrv  pye  Rich  •  in-!  rK.  ,    ''     --'    '^' 
e.  appointed  by  the  PrcfiJcnt  of  ^he  a'i'..  ',  ^   ^/'tr^f  °r 
w»h  Che  advice  and  conlint  of  the  Senar.  th-eof   ■',     -nl''"' 
iMt7,i,n.o„s  and  James  Innes,   havin,;  ,„„  aV  l'h'i);,'!;i„i:::rii' 

ty  feven,  for  the  purpole  of  procceiinir  iointiv  to  o,,,-,  ,L-  c 
pe«,ve  co,.mi(lio„./,i,i  ac/ordi„glv  Kt^.^,  L  'a  'd  ."[" 
mjm.cate  them  to  each  o;he,- ;  the  (aiu  ;o,i,n,ii!,c...  kin,  i,  I 
loJlowing  terms,  viz.  *   "  "^^ 


■MMMK.* 

■liNlill 


«;    ■• 


i 


62  ) 


I 


Commission  by  His  Britanm  c  Maj  estv. 

*<  GEORGE  R.  ,  „  .    . 

GEORGE,  by  the  Grace  of  God  King  of  Great  Britain, 
France,  and  Ireland,  Defender  of  the  Faith,  Duke  of  Briinlwick 
and  Lunenburgh,  Arch  Treafmer  and  Prince  Eltdor  of  the  Holy 
Roman  Empire,  &c.  &c.  To  all  to  whom  tiiefe  Prclents  ihall  come. 
Greeting.     Whereas  by  the  fixth  Article  of  the  Treaty  of  Amity, 
Comrac.ce  and  Navigation,  concluded  at  Wcftminlkr,  on  the  nine- 
teenth day  of  November,    One  thoufand  fcven  hundred  and  nine- 
ty four,  between  us  and  our  good  friends  the  United  States  ot  A- 
merica,  provifion  is  made  for  the  appointment  of  Commiffioncrs, 
in  the  manner,  and  for  the  purpofes  therein  mentioned.     Now 
Know  ye,   that  we  repofing  efpecial  trust  and  confidence  in    the 
wifdom,  diligence,  and  iniegricy  of  our  trulty  and  well  beloved 
Thomas  Macdc.ald,  and  Henry  ?ye  Rich,  Efquires,  have  nomi- 
nated, conftituted,  and  appointed,  and  by  thefe  prclents  do  nomi- 
nate, conRitute,  and  appoint,  the  faid  Thomas  Macdonald,  and 
Henry  Fye  Rich,  Efquires,    to  be  Our  Commiilioners,  appointed 
by  Us  under  the  faid  article.    And  we  do  hereby  authorize  and  re- 
quire the  faid  Thomas  Macdonald,  and  Henry  Pye  Rich,  Efqunes, 
to  meet  the  two    Commifiioners  appointed  or  to  he  appointed  on 
the  part  of  the  United  States,  under  the  laid  article,  and  with 
them  to  agree,  cr  otherwife  determine,  on  the  appointment  ot  a 
fifth  Comniiffioner,  in  the   manner  dlrcded   by  the   fajd  article  ; 
and   thereupon  to  proceed,  together  with   the  other  Commiflion- 
ers,  honeltly,  diligently,  impartially,  and  carehilly,  to  examine, 
and   to  the  bell  of  their  judgiivcnt,  according  to  julbce  and  e- 
quity  decide,  all  fuch  complaints  as  under  the  faid  article  (hall  be 
duly  preferred  to  the  liiid  Commillioneis,— and  generally  to  do 
and  perform,  agreeably  to  the  true  intern  and  meaning  ol  the  faid 
article,  all  fuch  adts  as  Ihall  be  neceHary    to  be  done  on  the  pare 
of  our  Commiilioners,  to  carry  the  fame  into  complete  execution. 
In  Testimony  and   co-diimation  of  all  which,   we  have  cauled 
our  Great  Seal  of  GreaiBriiain  to  be  affixed  to  thefe  prefects^,  fign- 
ed  with  ourRoyal  hand  —Given  at  cur  Palace,  at  St.  James's,  this 
feventh  day  of  September,  in  the  Year  of  our  Lord,   One  thoufand 
feven  hundred  and  ninety  fix,  and  in  the  thirty  fi\th  of  our  reign. 

By   His  Mijt'J?y's   C-mimond 

(fgneJ)  '  GRENVILLE." 

Commission  bv  the  Prestdt  nt  of  the  United  States. 
GEORGE  JrjSHIA'GTOX  President  of  the    United 
St  A  T  E  s  of  A :.'  E  R I  c  A . 

"  To  all  who  thai!  fee  thefe  prefents,   Greeting. 
"  WHEREAS  it  Is  alledged*  bv  divers  Britifli  merchants,   and 
others,  the  uibjecls  of  His  Britannic  Majeily,  that  debts  to  a  confi- 

*  The  fuhiequenr  Cmnmifilon  to  Mr.  Sitgrcavps,  on  the  cionth  of  Mr.  Iiinrs 
contains  the  t'oUowin^^  adui'.innai  woxi^  hi  t\u-  inivoauf' ion,  "  whereas^it  is  italed 
*t  in  the  fixth  artUlJot  the  Uc;>ry  ot"  jhimv,  &c.    r'li;)-.  ic  i.  alledged.^' 


(     03     ) 

deral)le  amouat,  which  were  bona  fide  contrafled  before  the  peace, 
between  the  United  States  and  His  faid  Majefly,  llili  remain  ow' 
miT  ro  them  by  citizens  or  i\ihabicants  of  the  United  States,  and 
tl-::.:  i-,;/  uie  oj>t.ra:ion  ut  various  lawful  impediments  fince  iii$ 
P!^c.cc,  not  o.ily  the  full  recovery  of  the  faid  debts  has  been  delay- 
td,  but  ahb  the  value  and  ftcaiicy  ther.'of  ha?.:  bjcij,  in  fdveral 
iiillinces  imp.iirel  and  leiTmed,  fo  tn:ic  by  v.\z  ordinary  courfe  oi 
jndicial  proceedings,  the  IJritira  creditors  cannji  no.v  obcam,  and 
actually  have  and  receive  full  and  adequate  cortipenfdtio'.i  foV  the 
loiTes  and  damages  which  they  have  thereby  fullained,  and  v.-wcrc- 
as  in  the  fixth  article  of  the  Treaty  of  Amity,  Commerce,  :.nd 
Navigation,  between  tl>c  United  States  and  His  Britannic  Majelly, 
It  is  agreed,  for  the  purpofe  of  afcertaining  the  amount  of  any 
liich  lofles  and  damages,  that  five  Commiflioners  fhall  be  appoint- 
ed, and  authorized,  to  meet  and  ad  in  the  manner  therein  fet 
iorth,  two  of  which  CommiinonGirs  to  be  appointed  by  His  faid 
Majerty,  and  two  by  the  Prehdent  of  the  United  States  by  and 
with  the  advice  and  confent  of  the  Senate  thereof,  and  the  fifth 
in  the  manner  in  the  faid  article  diredkd. — Now  Know  ye,  that 
repohag  fpecial  truft  and  confidence  in  the  integrity  and  abilities 
ot  Thomas  Fitzfimons,  of  Penniylvania,  and  James  Innes,  of 
Virginia,  [  have  nominated,  and,  by  and  with  the  advice  and 
confent  of  the  Sena^te,  appointed  the  faid  Thomas  Fitzfimons, 
and  James  Jnncs,  Commiflioners,  with  full  powers  to  meet  the 
Commlilioners  appointed  by  His  Britannic  IVIajefty,  and  with 
them  to  agree,  or  otherwife  determine,  on  the  appointment  of  a 
fifth  Commiffioner,  in  the  manner  directed  in  the  faid  fixth  arti- 
cle, and  thereupon,  having  talcen  the  oath  or  affirmation  in  that  ar- 
ticle prcfcribed,  to  proceed  to  examine,  and  according  to  juftice 
and  equity  decide,  all  fuch  complaints  as,  under  the  faid  fixth  ar- 
ticle fliall  be  preferred  to  them,  and  agreeably  to  the  true  intent 
and  meaning  tL.ieof,  generally  to  do  all  thole  afts,  which  (hall 
be  netefi^ary  to  carry  the  faid  article  into  complete  execution. 

"  In  Testimony  whereof!  have  caufed  thefe  Letters  to  be  made 
patent,  and  the  Seal  of  the  United  States  to  be  hereunto  affixed. 
*'  GIVEN  under  my  hand  at  the  City  of  Philadelphia,  this  firfi 
day  of  April  in  the  year  of  our  Lord,  One  thoufand  fcven  hundred 
and  ninety  fix,  and  of  the  Independence  of  the  United  States  the 
twentieth. 

(figned)  G.  WASHINGTON. 

By  the  Prefident 
(figmd)         Timothy   Pickering, 

Secretary  of  State. 


I 


V  Whicli  CommiiTions  the  faid  Comminioners  reipeaivcjy  found 
to'bcin  due  ibrm,  and  agreed  to  meet  upon  Thurfday  next,  the 
25th  day  of  May,  current,  for  t!ie  purpose  of  proceeding  to  the 
confiJeration  of  a  piopei  perfon  i;o  be  appointed  or  cholen  as  a 


^1 


(     64     ) 

fifth  CommilTioner,  purfuant  to,  and  in  the  manner  provided  for, 
by  the  faid  fixth  article  of  the  faid  Treaty. 

Thos.  Macdonald, 
,-       ,,  Henry   Pve  Rich, 

James  Innes." 


Thurfday,  2 5 ih  of  May,  1797. 

**  Th  E  faid  Connmiflloners,  viz,  Thomas  Macdonald,  and  Hen- 
ry Pyc  Rich,  appointed  by  His  Britannic  Majelty  ;  and  Thomas 
Fitzfimons,  and  James  Innes,  appointed  by  the  PrefiJent  of  the 
United  States,  as  aforefaid  ;  having  upon  t.'ie  l8th  day  ot  May, 
current,  opened  and  communicated  to  each  other  their  refpedtive 
Conimifiion.s,  which  were  found  to  be  in  due  form  ;  and  agreed  to 
iBcet  this  day  for  the  fpecial  purpofe  after  mentioneH,  did 
accordingly  meet,  and  endeavour  to  agree  in  the  choice  of  a  fifth 
Commiffioner,  puriuant  to  the  faid  Treaty.  But  finding  that  they 
could  not  fo  agree,  the  faid  Commiflioners  appointed  by  His  Bri- 
tanaic  Majefty  did  propofe,*  yo/:/:  GuiUetnani,  Efquire,  of  London, 
at  prefenc  in  Philadelphia,  and  the  faid  CommifTioners  appointed 
by  the  Prefident  of  the  United  States,  as  aforefaid,  did  propose 
Fijher  j^mes,  Efquire,  ol  Mailachufctts ;  and  the  faid  Henry  Pye 
Rich,  and  James  innes,  having  retired  into  another  room,!  tlie 

*  As  it  was  natur.il  to  attach  confidcrablc  importance  to  the  citciimftance, 
which  chance  was  thus  to  deferminc,  whether  tliree  of  the  five  Commifliurcis 
flipvid  be  Britilh  fubjefts  or  American  citizens,  a  very  fatisfaftory  ctHtle  of 
proceeding,  which  had  been  pradii'ed  by  the  Commifiion  under  thajcventh  arti- 
cle, fitting  at  London,  v/as  here  ^idopied.  The  Rritifli  Commiflionets  had,  fonie 
days  before,  delivered  to  the  Ameritaa  Commiihoiicrs,  a  lift  of  three  Eriiifin 
fubjefts,  then  in  America,  of  whom  the  Amcriciin  Commiflioncrs  were  to  chufe 
one,  to  bepropoffcd  by  the  Brlt;[h  Commilhoncrs  for  the  fituation  of  fifth,  or  ad- 
ditional Commiiiioner,  to  makv  up  tlic  full  number  prcfcrihet^  by  the  treaty  j  ths 
Britifh  Commiifioncrs  having  received  from  the  Amcric.in  Comniillinners,  a  fimi- 
larlift  of  three  American  citizens,  of  whom  th,:  BriliiTi  ComnniuM.ners  were  to 
chufe  one,  to  be  in  like  manner  propofcd  by  tin;  Am^^rican  Com'niiTnnt^rs.  The 
Britifh  Commiflioners  feleded  Mr.  Ames  from  'he  lift  of  American  tltli 'nr,,  and 
the  American  CommifTioners  fcicfted  Mr.  Guillcmarci  from  the  liil:  of  F.riiifh  fub- 
jcdsj  who  were  refpedivcly  piopofcd  accordinnly,  in  the  manner  ii'  ;/ iiati.d  j— 
And  thus,  though  the  appointment  was  ultimatvly  m.'.de  by  lot,  the  prrfun  l\> 
appointed,  was,  to  a  certain  Jepvee,  chofen  !>y  the  cli;6tion  of  both  parties. 

•f  Mr.  Pickering,  Secretary  of  ftatc,  who  Ei.ttndcJ,  alfo  retired  into  ihco- 
thcr  room,  where  he  witnelled  the  drawing  of  the  let- 
Mr.  Guillemard  having  on  the  2Qth  of  May  attended,  and  nolitlcd  his  ac(;cpt- 
ance,  the  oath  prefcribcd  by  the  article,  was  en  the  fame  day,  taken  by  al.the 
five  Commiflioners,  in  the  prefence  of  each  other,  and  before  the  Prciidcnt  of 
the  Court  of  Common  Pleas,  for  the  firft  diiirift  of  Pcnnfylvania,  who  met 
them  at  their  Ofiice  for  that  purpoie.  On  tha;  day,  therefore,  die  Du.ird  wa.» 
conftituted,  purfuuat  to  the  Treaty, 


W 


(    65     ) 

faid  Thomas  Macdonald,  and  Thomas  Fitzfimons,  wrote  down 
the  names  of  the  faid  two  perfons  fo  propofed,  on  feparate  flips  of 
paper,  which  being  rolled  up,  and  placed  in  an  urn,  vvere  carried 
in  the  fame,  by  the  laid  Thorn  is  Macdonald,  and  Thomas  Fitzfi- 
mons, into  the  prefence  of  the  faid  other  two  Commiflioners ;  and 
the  urn  being  there  dfelivered  to  the  faid  James  Inncs,  was  by  him, 
prefented  to  the  faid  Henry  ji*ye  Rich>  who,  in  the  prefence  of  the 
faid  other  Commiffioners,  drew  from!  the  fame,  the  name  of  the 
faid  John  Guillemard,  who  was  declared  the  Fifth  Commiffioner, 
bnder  the  faid  article  of  the  faid  Treaty. — -Thefe  things  were  fo 
done  at  Philadelphia,  and  iu  the  houfe  of  the  faid  Thomas  Fitz- 
fimons, this  twenty  fifth  day  of  May,  One  thoufand  feven  hun- 
dred and  ninety  feven. 

Thos.  Macdonald. 

,r      J.  Henry  Pye  Rich. 

'' °     '  Thos.  Imtzsimons. 

Jas.  Innes. 


No.  IV. 
Opinions  of  Judges.* 

I.     The  general  objeci  of  the  fourth  article  of  the  treaty  of  peace. — 

Judge  Paters6n. — "  The  traders  and  others  of  this  country, 
were  largely  indebted  to  the  merchants  of  Great  Britain.  To  pro- 
vide for  the  payment  of  thefe  debts  and  give  fatisfa^tion  to  this 
clafs  of  fubjedts,  muft  have  been  a  matter  of  primary  importance 
to  the  Britifli  miniftry.  This  doubtlefs  is  at  all  times,  and  in  all 
fituations,  an  objedl  of  moment  to  a  commercial  country.  The 
opulence,  refources,  and  power  of  the  Britifli  nation  may  ?n  no 
fmall  degree  be  afcribed  to  its  commerce  :  it  is  a  nation  of  manu- 
fafturers  and  merchants.  To  protedl  their  interelts,  and  provide 
for  the  payment  of  debts  due  to  them,  efpecially  <wheh  thofe  debts 
amounted  to  an  immenfe  fum,  could  not  fail  of  arreting  the  attenti- 
on, and  calling  forth  the  utmoft  exertions  of  the  Britifli  Cabinet. 
A  meafure  of  this  kind,  it  is  eafy  to  perceive,  would  be  purfued 


*  Th?  opinions  here  referred  to,  of  Judges  Chufe,  Pjterfon,  ffi/fcn,  an.l 
Cu/J/iiigj  were  delivered  in  tlic  Supreme  Courc  of  the  Unired  States,  after  the 
ticaty  of  amity,  in  the  cafe  os  fr'ur/e  adminifliutor  of  Junts,  piaincilTin  error, 
againft  Hylton  and  others,  decided  in  February  1796:  reported  3  Dallas,  199  :— 
thofe  of  Chief  Juitice  Elfivorth^  and  Judge  Stigrea'ves,  intfve  Circuit  Court  ot 
tlie  United  States,  for  the  dirtrift  of  North  Carolina,  in  deciding  the  cafe  oi 
Ham'n'tons  agaiiift  Enton,  in  June  1796,— as  ftated  in  a  printed  report,  publlih- 
cd  in  Noith  Carolina,  and  admitted  to  be  corrett. 


y 


■iiiiiiiiii 


i^ 


(    66    ) 

with  unremitting  diligence  aud  ardour.  Sacrifces  ivcuL/  be  made 
to  ini'ure  its  fuccel's ;  and  perhaps  nothing  fliorl  of  extreme  iieccfli- 
ty  would  induce  them  to  give  it  up," 


A 


I 


2.  The  contraSls  and  debts  of  ind't'viduaU  not  affcBed  by  the 
ti^jar  \ — the  article  in  that  refpeil  to  be  conjhued  avifh  the  utmoji  la* 
titiule : — intercji  as  much  part  of  the  debt  as  the  principal. — 

Judge  Paterson. — "  I  feel  nohefitation  in  declaring,  that  it 
has  always  appeared  to  me  to  he  incompatible  witii  the  principles 
oi"  jultice  and  policy,  that  contracts  entered  into  by  individuals  of 
different  nations  fhould  be  violated  by  their  refpeftive  governments 
in  confequence  of  national  quarrels  and  hoftilities — National  df- 
ftreiices  Jhculd  not  affed  pri-vate  bargains.  The  confidence  both 
of  an  individnal  and  national  nature  on  which  the  contrads  were 
founded,  ought  to  be  preferred  inviolate.  Is  not  this  the  language 
of  honefty  and  honour?  Does  not  the  {entiment  correfpond  with 
the  fentiiiients  of  juftice  and  the  diftates  of  the  mor.il  fenfc.''  In 
ihort,  is  it  not  the  refult  of  right  reafon  and  natural  equity  r  ^  Tlie 
relation  which  the  parties  Hood  in  to  each  other  at  the  time  of 
contrafting  thefe  debts  ought  not  to  pafs  without  notice.  The 
debts  were  contracted  when  the  creditors  and  debtors  were  fu'-.jei^s 
of  the  fame  King  and  children  of  the  fame  family.  They  were 
made  under  the  fanftion  of  laws  common  to,  and  binding  on  both. 
A  rcvoluiionnry  ivar  could  not,  like  other  ^vars,  be  forefeen  or  calcu- 
lated upon  : — The  thing  was  improbable  : — No  one  at  the  time 
debts  were  contrafted  had  any  idea  of  :'  leverance  or  difmember- 
ment  of  the  empire,  by  which  perfons  who  had  been  united  under 
one  fyftem  of  civil  polity  ihonld  be  torn  afunder,  and  become  ene- 
mies, for  a  time,  and  perhaps  aliens  for  ever.  Contracts  enter- 
ed into  in  fuch  a  Aate  of  things  ought  to  be  facredly  regarded  . — 
Inviolability  feems  to  be  attached  to  them  :" — '*  Theconflruftion 
of  a  treaty  made  in  favour  of  fuch  creditors,  and  for  the  reftoration 
land  enforcement  of  pre-exilling  contradls  ought  to  be  liberal  and 
benign: — For  thefe  ren Tons  this  claufe  in  the  traM)'  dffir-ves  the 
utmo/l  latitude  of  expcjition  ;" — 

Judge  Shippen  (now  Chief  Jultice  of  Pennfylvnnia.)  "The 
five  thoufand  pounds  paid  T.'7//j' /«rtT£/?,  at  this  day,  is  not,  in  faft 
or  law,  more  than  the  five  thoufand  pounds,  paid  without  interefi, 
at  the  day  it  becomes  due". — 2  Dallas  Rep.  255 


3- 

VUOUS 


The  fourth  article  of  the  treaty  of  peace,  clear  and  iinamhi' 
;  and  not  conne^ed  i\:iih  the,  fifth. 


Judge  Paterson. — "  The  fourth  article  of  the  treaty  gives 
the  text,  and  runs  in  the  following  words :  "  It  is  agreed  that 
'*  all  creditors  on  cither  fide  fhall  nieet  with  no  lawful  impedi- 


(     <57     ) 

**  ments  to  the  recovery  of  the  full  value  in  fterling  money  of  all 
♦♦  bona  fide  debts  heretofore  contradted."  Tlie  phialeology  made 
ufe  of  leaves,  in  my  liiind,  no  room  to  hefitatf,  as  to  the  intention 
of  ihe  parties.  The  terms  arc  unequivocal  nw*.]  univcrlal  in  their 
fignification  ;  and  obvioufiy  point  to,  and  conipif  hcnd  all  cicdi- 
tors  and  ail  debtors,  pievicmlly  to  the  3d  of  Sc'incmber  171^^3.  In 
this  article  there  appears  to  be«  J'ehdtion  of  e.KprcjJiuns,  plain  and 
extenji've  in  their  import,  and  admirably  cahuh'.t.d  in  cb~jiate  doubt s^ 
to  remo-ve  difficulties,  tn  dejignate  tbe  objecis,  and  a/certain  the  i/itsn- 
tion  of  the  contending povja-s ;  and  in  llioit,  tc  meet  a",<.i  provide 
ior  all  pojjible  cafes  that  could  arife  under  ihe  head  Qi  debts. '^ 

Judge  C  u  s  !u  N  G . — ' '  The  words  are  as  Jlrcng  as  the  nvit  of  man 
iOiild  dei'ife,  to  avoid  all  effects  of  feqaeltration,  conhicaiion,"  kz. 

Judge  SiTCRKAVEs. — '*  Fatttl  (ays,  p.  369.  'When  an  aifl 
is  conceived  in  clear  and  pofuive  terms;  when  the  fenfe  is  niani- 
feit,  and  leads  to  nothing  abfurd,  there  can  be  no  reaibii  to  refute 
the  fenie  which  the  treaty  naturally  prcfents, — To  goeUVwhere  in 
fearch  of  conje61iucs,  in  order  to  extinguiili  or  rdliain  it,  is  to 
endeavour  to  elude  it.' — 

"  'I'he  fourth  article  contains  the  cnly  (lipulation  v.'ith  rcfpe^l 
to  debts,  in  the  whole  inllrnmcnt.  It  is  mutual  and  general  in 
its  expreflion  ;  not  limited  or  retrained  by  any  particular  words  to 
any  defcrip:ion  of  peribn?,  as  is  e-vidcnt  in  the  litth  arli'L'.  If 
that  had  been  in  the  conteuiplatjon  of  the  parties,  they  nudd  roc 
have  overlooked  the  ncceflity  for  thefe  dillinction; — nor  are  we  at 
liberty  to  preiume  it.  in  the  next  article  (the  fifth)  the  dilVmcli- 
on  is  made  with  great  accuracy  with  regard  to  thofe,  who  endea- 
vour to  procure  a  nfitiuicn  of  their  lands  and  oiher  property." 


4.     The  benefit  of  the  fourth  article  of  the  treaty  cf  peace  extend- 
ed to  aW  defcripttcns  of  creditors,  'without  difiindton. 


See  the  opinion  immediately  preceding. — 

Judge  Paterson. — "The  terms  are  unequivocal,  kc  and 
obvioully  point  to,  and  comprehend  all  creditors,  and  all  debtors 
previoudy  to  the  3d  of  Sep:;embcr  17H3." — "  The  words  credi- 
tor; on  iuhsr  pdc,  embrace  every  defcription  of  creditors'^ — "  ^o 
line  jhould  be  drcnvn  betiveen  creditors,  unlcf  it  be  jound  in  the  trea- 
ty. The  treaty  does  net  make  it.  The  truth  is,  that  none  was  in- 
tended, or  it' would  have  been  exprcfll'd.  The  indefinite  and 
fweeping  terms  made  ufe  of  bv  the  pariie-,  fuch  as  ''  creditors 
•'  on  either  fide,"  "  no  lawful  impediment  to  the  recovery  oi 
the  full  value  in  flcrling  money  of  all  debts  heretofore  contract- 
ed," exclude  the  x^C'X  of  ary  clafs  rf  cafes ^  having  been  in- 
tended to  [•(■  iwcqttd,  nnd"  e\plode   the   do(!:lrine  of  ccnfnii-lii't' 


i: 


^Siw«;^„ 


wmm 


mmmm 


^\ 


(    68     ) 

Ji/crimittatieti.**'—"  All  the  creditors  on  cither  (\Ativithout  dijiivdi' 
OHt  muft  have  been  contemplated  by  the  parties  in  the  fourth  ar- 
ticle." 


5.  The  fourth  artick  of  the  treaty  of  peace  not  covfned  to  debts 
extjiing  at  the  date  of  the  treaty. 

Judge  Wilson. — "  The  fourth  article  is  well  exprefled  to  meet 
the  very  cafe  ;"  (the  cafe  of  a  Britilh  debt  which  had  been  legal- 
ly extinguiflied,  before  the  treaty,  by  payment  into  a  ftate  treafu- 
ry,  purfuantto  law,  and  which  was  held  to  amount  to  confifcation) 
— ••  It  is  not  confined  to  debts  exipng  at  the  time  of  making  the 
treaty y  but  it  is  extended  to  debts  theretofore  contraded." 

Judge  Pater soN.rr"  The  fourth  article  extend^  to  all  pre^ 
exijiing  debts.^^ 


I 


6.  jill  confifcations  ;  payments  in  paper  money  ;  and  e'very 
thing  done  under  the  law  to  prenjent,  i?Hpede,  or  impair  the  reio-very 
of  Britijh  debts,  fet  aftde  by  the  fourth  article  of  the  treaty  cf  peace  \ 
<vchich  had  a  reirofpeiii%'e  operation. 

Judge  Wilson. — "  By  every  nation,  whatever  is  its  form  of 
government,  the  conffcation  of  debts  ha.s  long  been  tonfidered  di^- 
renutable:*  And  we  know  that  not  a  fingie  confifcation,  of  that 
kind,  Jiained  the  code  of  any  of  the  European  Powers  who  were 
engas^ed  in  the  war  which  our  revolution  produced.  Nor  did  any 
authority  for  the  confifcation  of  debts  proceed  from  Congrefs  (that 
body  which  clearly  poircffed  the  right  of  confifcation,  as  an  ind- 
dent  of  the  powers  of  war  and  peace;)  and  therefore  in  no  in- 
Ibnce  can  the  ad  of  confifcation  be  confidered  as  the  aft  of  the 
nation.  But  even  if  Virginia  had  the  power  to  confiicate,  the 
treaty  aniiuls  the  conf feat  ion. ^* 

Chief  JupceEiLswOKT H . — "  Civil  war  which  terminates  in  a 
feverance  of  empire,  does  perhaps,  lefs  than  any  other,  juftify  the 
confifcation  oi  debts;  becaufe  of  the  fpecial  relation  and  confi- 
dence fubfilling  at  the  time  they  were  contracted" — *'  North  Ca- 
rolina however  judging  for  herfelf  in  a  moment  of  fevere  preffure^ 

*  The  two  nations  have  in  th?  tenth  article  of  the  treaty  of  amity  agreed  in 
reprobating  this  injuiVice  done  to  individuals,  in  thc/e  words,  *'  it  being  unjuft 
*'  and  impolitic,  that  debts  and  ^engagements  ccntrafted  and  made  by  individu- 
*♦  als  havintr  confidence  in  ea  :hothcr,  and  in  ihcir  re(pe6>ive  govt'rnmenis,  ihould 
*<  ever  be  dcftroyed  or  impaired  by  national  uuihority,  on  account  ot  national 
"  diftcrcnces  and  aifcontenls.' 


Nirt^^*^'^*'Wf  ■■ ' 


debtj 


were 


(     69     ) 

excrciled  the  fovercign  power  of  pafling  an  aft  of  confifcation, 
ivhich  extended  among  others,  to  the  debts  of  the  plaintiffs. **-^ 
•*  The  tteaty  is  now  the  law  in  this  ftate  ;  and  the  confifcation  aS, 
fo  far  as  the  treaty  interferes  with  it,  is  annulled.  Still  it  is  urged, 
that  annulling  the  confifcation  aft  cannot  annul  the  defendants'  right 
of  difcharge,  acquired  ivhile  the  afi  nvas  in  force.  It  is  true,  the 
Repeal  of  a  law  does  not  make  void  what  has  been  well  done  un- 
der it  :  but  it  is  alfo  true,  admitting  the  right  here  claimed  by 
the  defendant  to  be  as  fubftantial  as  a  right  of  property  can  be, 
that  he  may  be  deprived  of  it,  if  the  treaty  fo  requires.  It  is  jufti- 
fiable  and  frequent,  in  theadjultment  of  national  differences,  to 
concede,  for  the  f'afety  of  the  ftate,  the  rights  of  individuals." 

Judge  CusHiNfi.— -"Thewords  areas  (Irong  as  thewitof  man 
could  devife  to  avoid  all  efTefts  of  fequeftration,  confifcation,  or  any 
ether  ohjlack  thrown  in  the  way  by  any  law,  particularly  pointed 
againrt  the  recovery  of  fuch  debts.** 

Judge  Chase. — "  Thefe  words  (the  words  of  the  fourth  arti- 
cle) have  both  a  r^trofpedive  and  future  afpeft." — •*  Thp  fourth 
article  did  intend  to  deflroy  all  lawful  impediments,  pafi  and  fu- 
ture''— "  The  llipulation  could  pot  intend  only  to  repeal  laws  that 
created  legal  impediments  to  the  recovery  of  the  debt,  (without 
refpeft  to  the  mode  of  payment)  becaufe  the  mere  repeal  of  a  law 
would  not  deftroy  aSlsdone,  and  rights  acquired  under  the  law,  du- 
ring its  exiftence  before  the  repeal."  '♦  The  legiflatures  of  the 
flates  have  often  cxcrcifed  the  power  of  impairing,  and  in  fbmp 
inftances,  almolt  annihilatingt  the  obligation  of  contraiis  ;  as  by  ten- 
der Inivs,  which  made  an  offer  to  pay,  and  a  refufal  to  receive  paper 
money,  for  afpeciedebt,  an  extinguiihmcnt,  to  the  amount  tender- 
ted." — '*  It  is  admitted  that  the  treaty  intended,  and  did  annul  fome 
of  the  laws  of  the  ftatgs,  to  wit,  any  laws,  pafi  q\  future^  that  autho- 
rifed  a  tender  of  paper  fnoney,  to  extinguijh  or  difcharge  the  debt, 
&c.  &:c-  becaufe  if  the  words  *^  fier ling  money''''  have  not  this  ef- 
feft,  it  cannot  be  fhewn  that  they  have  any  other.  If  the  treaty 
could  nullify  fome  laws,  it  will  be  difficult  to  maintain  that  it 
could  not  equally  annul  others." 

Judge  Gushing.— *•  The  plain  and  obvious  meaning  of  it 
goes  to  nullify  ab  initio  all  laws,  or  the  impediments  of  any  lanVj  as 
far  as  they  might  have  been  defigned  to  impair  or  impede  the  cre- 
ditors right  or  remedy  againfl  the  original  debtor." 

Judge  Pater  SON.- — "  The  words,  *'  (ball  meet  with  no  lawful 
**  impediment,"  refer  tolegidative  afts,  and  e'very  thing  dene  un- 
der them  y  fo  far  as  the  creditor  m'jht  be  o,il'"e^)ed,  nv  obftrnftod^ 
in  regard  either  to  his  remedy  or  right.  Ail  lawful  impediments 
of  whatever  kind  they  might  be,  whether  they  related  to  perfonal 
difabilities,  or  confifcations^  fequeftrations,  or  payments  into  loan 
pfHces  or  treafurics,  are  retno'ved.  No  aft  of  any  ftate  legiflature, 
and  no  pajjnini  made  under  fuch  aci,  into  the  public  coffers,  fhall 


.^««;»-^ 


hs 


(     7«    ) 


r^' 


iit, 


{ 


.! 


I 


cibftruft  the  creditor  in  the  courfc  of  recovery  ap;aiiii!  Ms  debtor. 
The  aft  itfeU  is  a  lawful  impediment  and  therefore  r-v'pealcd  :  tf>e 
payment  under  the  ail  is  ti/fo  a  lawful  impediment ^  and  therefore  is 
made 'vo:d.  The  article  is  to  be  conitrucd  according  to  the  fub- 
jedl  matter  or  nature  of  the  impediment;  it  repeals  in  the  firtl 
infiance,  and  nullifies  in  the  fecond.'*  "  It  (^ipulates  ihat  the  cre- 
ditor (hall  recover  the  lull  value  of  his  debt  in  fterlin^f  money  ; 
thereby  fecuring  and  guarding  him  againjt  nil  i>aymcnts  in  p{ip,:r 
money.'*  '*  The  defign  unquellionably  wa:i  to  rcfiorc  the  creditor 
and  debtor  to  their  original  flate,  and  place  them  precfely  iti  the 
jituation  they  ivauld  hai>e  finod in,  if  no  war  had  intervened,  or  ad 
of  the  Legiflature  of  Virginia,  had  been  pafTcd.  The  impediments 
created  by  Icgiflative  atTs,  and  the  paytnents  made  i>t  inofuancc  of 
them,  and  all  the  e'vils  grooving  out  of  them,  were  lb  far  as  refpt'd- 
cd  creditors  dovic  away  and  cured."  ••The  article  reinjlates  the 
parties ;  the  creditor  and  debtor  hefortj  the  war,  are  creditor  and 
debtor  fince.     As  they  food  then  they  flaiul  ho-ik), 

— — "  To  prevent  miftakes  it  is  to  be  underflood,  thnt  my  ar- 
gument embraces  none  but  lawful  impediments  within  the  mean- 
ing of  the  treaty,  yW?  rti  legiflative  ads,  and  payments  under 
them  into  loan  offices  and  trcafuries.  An  impediment  created  by 
law,  (lands  on  different  ground  from  an  impediment  created  by 
the  creditor- "• 


7.     J  Plea  may  be  a  la^vful  impediment  iviihin  the  tneatiing  of 
the  treaty  of  peace, 

Judc:e  Chase. — ''  Shall  meet  with  no  lawful  impediment"  to 
«'  the  ^recovery  j''  that  is  to  the  right  of  adion,  judgment, 
and  execution,  and  receipt  of  the  money,  wiihcmt  impediments 
in  the  courts  of  jrftice  ;  which  could  only  be  by  Pica  (as  in  the 
prefent  cafe)  or  by  proceedings  after  judgment,  to  compel  receipt 
of  paper  money  'or  property,  inilead  of  llcrling  money.  The 
word  reco'vcry  is  very  compre'henfive,  and  operates  in  the  prefent 
cafe,  to  give  remedy  from  the  commencement  of  the  fuit  to  the 
receipt  of  the  money." — "  1  conlider  the  fourth  article  in  this 
light,  thrt  it  is  not  a  llipulation  that  anain  atis  fhail  be  done, 
and  that  it  was  necefTary  for  the  legiflatures  of  individual  tlates  t(j 
do  thofe  ads :  but  that  it  is  an  exprefs  agreement,  that  certcnu  things 
jhaJl  net  be  permlticd  in  the  Jmerican  courts  of  j  if  ice  ;  and  that  it 
is  a  contract  on  behalf  of  thole  courts,  that  they  i<ijl  not  uiknv  juch 
<iiis  to  he  flead:cl  in  bar,  to  prevent  a  recovery  of  certain  EnLip 
ebts.     h->  creditors  can  only  luc  for  the  recovery  of  their  debts 

"  The.  ?.bnve  genrrft!  fentencf;!;,  wl-.kh  thus  conclude  the  learned  Judges  .argu- 
ment in  the  rerort.  cc.nta'm  pofitio.-;'?  which  never  can  be.  diiVutcd,  and  tf.ke  no- 
thin"  from  tiic  torti-  oF  the' piinciplcs  hefure  hiid  down.  The  report  was  not 
nubhfhed  tiH  after  tl-c  r-folurion  of  the-  Board  in  the  cafe  of  I'iulary,  whrr.' 
ihev  held  the  ttr.p^imcnr  to  ■^xM-'.  ret  jVski  dc  a^  cj  :ic  crdim-y  but  of  the 


In  cruris  t.fjuftite.  nnj  it  is  onl ,  in  ccuris  ofjuHlcf,  tliai  a  lc^,al 
imiu'ctiincnt  can  be  Iti  up  jy  »'  .  ■  of  /iV^,  in  bar  ot  the ir  aillions, 
it  appeals  to  nic,  that  the  comti.  aiv  bound  to  ever  rub  every  (uch 
pica  if  contrary  to  the  treaty.  A  recovery  of  a  debt  can  only  be 
prcvtnted  by  a  plea  in  bar  to  the  aiilun.'* 


H.  Opcrrjirjt  f)f  Icgijlaii've  aSis  in  South  Carolina,  fojfedfince 
the  penci'^    ngaiiij)  the  recovery  of  debts, 

judpes  Mathews  and  RuTLrncR,  in  their  decree,  (as  ap- 
penr'^  from  an  attclteJ  copy)  in  the  court  of  Chancery  of  South 
Carolina,  in  the  calc  o\'  Greenv.ccd  and Hig^hi/on,  fverfus  Air  and 
nl^trs,  dated  the  2oih  of  March  1795  ;  wlicre  the  quellion  was, 
whether  the  complainants  (Britifh  luhjtcti)  were  guilty  of  laches 
or  negligence,  in  not  proceeding  to  recover  payment  ot  the  debt? 
uetlared  as  t'oliowf.,  "  As  to  the  time  which  elapled  fiace  1774  to  the 
prtl.  tit  pcticid,  iliat  is  eafily  accounted  for.  Fror.  1774  to  1783, 
the  war  proveutcd  any  thing  being  done  ;  and  from  1783  :  II  1793, 
ire  repeauil  initrjcrcKces  of  the  Itgifature,  beinjueen  creditors  and  debt' 
CIS,  madf  i:  all '^^et her  i:nfoJJil>l,'  to  recc^^-ct  debts,  duritv^  that  time.^^--^ 


9.  On  the  fubjeft  of  certain  pofitions  which  had  been  main- 
tained oij  the  pan  of  the  Llnited  Stales,  and  were  noticed  in  the  ie- 
eoiid  relblutioit  iii  tliecale  of  Allen,  it  appears,  that  Federal  Judges 
had,  in  very  rtrong  and  unequivocal  terms,  delivered  fentiments, 
refpefting  the  operation  of  the  frji  article  of  the  treaty  of  peace, 
wh'ch  ncccfiarily  led  to  the  fame  concluiicn  as  that  which  a  majo- 
riiy  of  the  Buanl,  in  that  cafe  exprrJled,  Hefides  the  opinions  of 
Judges  Chafe,  Patcrfon,  and  Pendleton  of  Virginia,  quoted  in 
that  reiblution,  an  obfervation  ♦*  on  the  validity  of  the  treatv  of 
♦♦  peace"  made  by  Judge  Fendlefjn  of  Georgia,  in  the  Circuit 
court  of  the  United  States,  in  v'eciding  the  cafe  of  Brai/sfcrd  and 
others  againlf  Spalding,  in  May  1792,  may  be  referred  to,  as 
Ifatcd  in  a  printed  report  of  tl)e  caie,  the  accuracy  of  which  li^LS 
not  been  ditputed. 


1  HE  k::\ !). 


